/^ 


c 


T>OS  ANGELES 
UBRARY 


CRIME 
AND   ITS  REPRESSION 


MODERN    CRIMINAL    SCIENCE    SERIES 

Published   under   the   auspices   of  the    American   Institute   of    Criminal    Law 

and  Criminology 

1.  Modern  Theories  of  Criminality.  By  C.  Bernaldo  de  Quieos,  of 
Madrid.  Translated  from  the  Second  Spanish  Edition,  by  Dr.  Alphonso  de 
Salvio,  Assistant  Professor  of  Romance  Languages  in  Northwestern  University. 
With  an  American  Preface  by  the  Author,  and  an  Introduction  by  W.  W. 
Smithers,  Esq.,  of  Philadelphia,  Secretary  of  the  Comparative  Law  Bureau  of 
the  American  Bar  Association. 

2.  Criminal  Psychology.  By  Hans  Gross,  Professor  of  Criminal  Law  in 
the  University  of  Graz,  Austria,  Editor  of  the  "Archives  of  Criminal  Anthro- 
pology and  Criminahstics,"  etc.  Translated  from  the  Fourth  German  edition, 
by  Dr.  Horace  M.  Kallen,  Lecturer  in  Philosophy  in  Harvard  University. 
With  an  American  Preface  by  the  Author,  and  an  Introduction  by  Joseph 
Jastrow,  Professor  of  Psychology  in  the  University  of  W^isconsin. 

3.  Crime,  Its  Causes  and  Remedies.  By  Cesare  Lombroso,  late  Pro- 
fessor of  Psychiatry  and  Legal  Medicine  in  the  University  of  Turin,  author  of 
the  "  Criminal  Man,"  etc.,  Founder  and  Editor  of  the  "  Archives  of  Psychiatry 
and  Penal  Sciences."  Translated  from  the  French  and  German  editions  by  Rev. 
Henry  P.  Horton,  M.  A.,  of  Columbia,  Mo.  With  an  Introduction  by 
Maurice  Parmelee,  Associate  Professor  of  Sociology  in  the  University  of 
Missouri. 

4.  The  Individualization  of  Punishment.  By  Raymond  Saleilles, 
Professor  of  Comparative  Law  in  the  University  of  Paris.  Translated  from  the 
Second  French  edition,  by  Mrs.  Rachael  Szold  Jastrow,  of  Madison,  Wis.  With 
an  Introduction  by  Roscoe  Pound,  Professor  of  Law  in  Harvard  University. 

5.  Criminal  Sociology.  By  Enrico  Ferri,  Member  of  the  Roman  Bar, 
and  Professor  of  Criminal  Law  and  Procedure  in  the  University  of  Rome,  Editor 
of  the  "  Archives  of  Psychiatry  and  Penal  Sciences,"  the  "  Positivist  School  in 
Penal  Theory  and  Practice,"  etc.  Translated  from  the  Fifth  Italian,  and  Second 
French  edition,  by  Joseph  I.  Kelly,  Esq.,  of  Chicago,  tormeriy  Lecturer  on 
Roman  Law  in  Northwestern  University  and  Dean  of  the  Faculty  of  Law  in  the 
University  of  Louisiana.  With  an  American  Preface  by  the  Author,  and  an  In- 
troduction by  Charles  A.  Ellwood,  Professor  of  Sociology  in  the  University 
of  Missouri. 

6.  Penal  Philosophy,  By  Gabriel  Tarde,  Late  Magistrate  in  Picardy, 
Professor  of  Modern  Philosophy  in  the  College  of  France,  and  Lecturer  in  the 
Paris  School  of  Pohtical  Science.  Translated  from  the  Fourth  French  edition,  by 
Rapelje  Howell,  Esq.,  of  the  Bar  of  New  York  City.  With  an  Introduction 
by  Robert  H.  Gault,  Assistant  Professor  of  Psychology  in  Northwestern  Uni- 
versity, and  Managing  Editor  of  the  Journal  of  the  Institute. 

7.  Criminality  and  Economic  Conditions.  By  W.  A.  Bonger,  Doctor  in 
Law  of  the  University  of  Amsterdam.  Translated  from  the  French  by  Henry  P. 
Horton,  M.  a.,  of  Ithaca,  N.  Y.,  and  Victor  von  Borosini,  of  Chicago,  111. 

8.  Criminology.  By  Raffaelle  Garofalo,  former  President  of  the  Court  of 
Appeals  of  Naples.  Translated  from  the  First  ItaUan  and  the  Fifth  French 
edition,  by  Robert  W.  Millar,  Esq.,  of  Chicago,  Lecturer  in  Northwestern 
University  Law  School. 

9.  Crime  and  Its  Repression.  By  Gustav  Aschapfenburg,  Professor  of 
Psychiatry  in  the  Academy  of  Practical  Medicine  at  Cologne,  Editor  of  the 
"  Monthly  Journal  of  Criminal  Psychology  and  Criminal  Law  Reform."  Trans- 
lated from  the  Second  German  edition  by  Adalbert  Albrecht,  of  South  Easton, 
Mass. 


THE   MODERN   CRIMINAL   SCIENCE   SERIES 

Published  under  the  Auspices  of 
THE  AMERICAN  INSTITUTE  OF  CRIMINAL  LAW  AND  CRIMINOLOGY 


Crime 

And  Its  Repression 

By  GUSTAV  ASCHAFFENBURG 

Professor  of  Psychiatry  in  the  Cologne  Academy  of  Practical  Medicine 
and  Editor  of  the  "  Journal  of  Criminal  Psychology  and 
Criminal  Law  Reform  " 

Translated  by 
ADALBERT  ALBRECHT 

Associate  Editor  of  the  Journal  of  Criminal  Law  and  Criminology 
With  an  Editorial  Preface  by 

MAURICE    PARMELEE 

Associate  Professor  of  Sociology  in  the  University  of  Missouri 
And  an  Introduction  by 

ARTHUR  C.  TRAIN 

Former  Assistant  District  Attorney  for  New  York  County 


BOSTON 

LITTLE,  BROWN,  AND   COMPANY 

1913 

125531 


Copyright,  1913, 
By  Little,  Brown,  and  CoarPAirr. 


All  riff  his  reserved 


y 


GENERAL  INTRODUCTION  TO  THE 
MODERN  CRIMINAL  SCIENCE  SERIES. 

At  the  National  Conference  of  Criminal  Law  and  Crim- 
inology, held  in  Chicago,  at  Northwestern  University,  in 
June,  1909,  the  American  Institute  of  Criminal  Law  and 
Criminology  was  organized;  and,  as  a  part  of  its  work,  the 
following  resolution  was  passed: 

"  Whereas,  it  is  exceedingly  desirable  that  important 
treatises  on  criminology  in  foreign  languages  be  made  readily 
accessible  in  the  English  language,  Resolved,  that  the  presi- 
dent appoint  a  committee  of  five  with  power  to  select  such 
^V^  treatises  as  in  their  judgment  should  be  translated,  and  to 
arrange  for  their  publication." 

The  Committee  appointed  under  this  Resolution  has  made 
careful  investigation  of  the  literature  of  the  subject,  and  has 
consulted  by  frequent  correspondence.  It  has  selected 
several  works  from  among  the  mass  of  material.  It  has 
^\  arranged  with  publisher,  with  authors,  and  with  transla- 
-^  tors,  for  the  immediate  undertaking  and  rapid  progress  of 
the  task.  It  realizes  the  necessity  of  educating  the  profes- 
sions and  the  public  by  the  wide  diffusion  of  information  on 
this  subject.  It  desires  here  to  explain  the  considerations 
which  have  moved  it  in  seeking  to  select  the  treatises  best 
adapted  to  the  purpose. 
^  For  the  community  at  large,  it  is  important  to  recognize 

that  criminal  science  is  a  larger  thing  than  criminal  law. 
The  legal  profession  in  particular  has  a  duty  to  familiarize 
itself  with  the  principles  of  that  science,  as  the  sole  means 
for  intelligent  and  systematic  improvement  of  the  criminal 
law. 


■1 


•J 


sn  GENERAL  INTRODUCTION 

Two  centuries  ago,  while  modern  medical  science  was  still 
young,  medical  practitioners  proceeded  upon  two  general 
assumptions:  one  as  to  the  cause  of  disease,  the  other  as  to 
its  treatment.  As  to  the  cause  of  disease,  —  disease  was  sent 
by  the  inscrutable  will  of  God.  No  man  could  fathom  that 
will,  nor  its  arbitrary  operation.  As  to  the  treatment  of 
disease,  there  were  believed  to  be  a  few  remedial  agents  of 
universal  eflBcacy.  Calomel  and  blood-letting,  for  example, 
were  two  of  the  principal  ones.  A  larger  or  smaller  dose  of 
calomel,  a  greater  or  less  quantity  of  bloodletting,  —  this 
blindly  indiscriminate  mode  of  treatment  was  regarded  as 
orthodox  for  all  common  varieties  of  ailment.  And  so  his 
calomel  pill  and  his  bloodletting  lancet  were  carried  every- 
where with  him  by  the  doctor. 

Nowadays,  all  this  is  past,  in  medical  science.  As  to  the 
causes  of  disease,  we  know  that  they  are  facts  of  nature, 
—  various,  but  distinguishable  by  diagnosis  and  research, 
and  more  or  less  capable  of  prevention  or  control  or  counter- 
action. As  to  the  treatment,  we  now  know  that  there  are 
various  specific  modes  of  treatment  for  specific  causes  or 
symptoms,  and  that  the  treatment  must  be  adapted  to  the 
cause.  In  short,  the  individualization  of  disease,  in  cause  and 
in  treatment,  is  the  dominant  truth  of  modern  medical  science. 

The  same  truth  is  now  known  about  crime;  but  the  under- 
standing and  the  application  of  it  are  just  opening  upon  us. 
The  old  and  still  dominant  thought  is,  as  to  cause,  that  a 
crime  is  caused  by  the  inscrutable  moral  free  will  of  the  human 
being,  doing  or  not  doing  the  crime,  just  as  it  pleases;  abso- 
lutely free  in  advance,  at  any  moment  of  time,  to  choose  or 
not  to  choose  the  criminal  act,  and  therefore  in  itself  the 
sole  and  ultimate  cause  of  crime.  As  to  treatment,  there 
still  are  just  two  traditional  measures,  used  in  varpng  doses 
for  all  kinds  of  crime  and  all  kinds  of  persons,  —  jail,  or  a 
fine  (for  death  is  now  employed  in  rare  cases  only).  But 
modern  science,  here  as  in  medicine,  recognizes  that  crime 


GENERAL  INTRODUCTION  vii 

also  (like  disease)  has  natural  causes.  It  need  not  be  asserted 
for  one  moment  that  crime  is  a  disease.  But  it  does  have 
natural  causes,  —  that  is,  circumstances  which  work  to  pro- 
duce it  in  a  given  case.  And  as  to  treatment,  modern  science 
recognizes  that  penal  or  remedial  treatment  cannot  possibly 
be  indiscriminate  and  machine-like,  but  must  be  adapted 
to  the  causes,  and  to  the  man  as  affected  by  those  causes. 
Common  sense  and  logic  alike  require,  inevitably,  that  the 
moment  we  predicate  a  specific  cause  for  an  undesirable 
effect,  the  remedial  treatment  must  be  specifically  adapted 
to  that  cause. 

Thus  the  great  truth  of  the  present  and  the  future,  for 
criminal  science,  is  the  individualization  of  penal  treatment, 
—  for  that  man,  and  for  the  cause  of  that  man's  crime. 

Now  this  truth  opens  up  a  vast  field  for  re-examination. 
It  means  that  we  must  study  all  the  possible  data  that  can 
be  causes  of  crime,  —  the  man's  heredity,  the  man's  physi- 
cal and  moral  make-up,  his  emotional  temperament,  the 
surroundings  of  his  youth,  his  present  home,  and  other 
conditions,  —  all  the  influencing  circumstances.  And  it 
means  that  the  effect  of  different  methods  of  treatment,  old 
or  new,  for  different  kinds  of  men  and  of  causes,  must  be 
studied,  experimented,  and  compared.  Only  in  this  way 
can  accurate  knowledge  be  reached,  and  new  eflScient  meas- 
ures be  adopted. 

All  this  has  been  going  on  in  Europe  for  forty  years  past, 
and  in  limited  fields  in  this  country.  All  the  branches  of 
science  that  can  help  have  been  working,  —  anthropology, 
medicine,  psychology,  economics,  sociology,  philanthropy, 
penology.  The  law  alone  has  abstained.  The  science  of 
law  is  the  one  to  be  served  by  all  this.  But  the  public  in  gen- 
eral and  the  legal  profession  in  particular  have  remained 
either  ignorant  of  the  entire  subject  or  indifferent  to  the 
entire  scientific  movement.  And  this  ignorance  or  indiffer- 
ence has  blocked  the  way  to  progress  in  administration. 


viii  GENERAL  INTRODUCTION 

The  Institute  therefore  takes  upon  itself,  as  one  of  its  aims, 
to  inculcate  the  study  of  modern  criminal  science,  as  a  press- 
ing duty  for  the  legal  profession  and  for  the  thoughtful 
community  at  large.  One  of  its  principal  modes  of  stimulat- 
ing and  aiding  this  study  is  to  make  available  in  the  English 
language  the  most  useful  treatises  now  extant  in  the  Con- 
tinental languages.  Our  country  has  started  late.  There 
is  much  to  catch  up  with,  in  the  results  reached  elsewhere. 
We  shall,  to  be  sure,  profit  by  the  long  period  of  argument 
and  theorizing  and  experimentation  which  European  thinkers 
and  workers  have  passed  through.  But  to  reap  that  profit, 
the  results  of  their  experience  must  be  made  accessible  in 
the  English  language. 

The  effort,  in  selecting  this  series  of  translations,  has  been 
to  choose  those  works  which  best  represent  the  various  schools 
of  thought  in  criminal  science,  the  general  results  reached, 
the  points  of  contact  or  of  controversy,  and  the  contrasts  of 
method  —  having  always  in  view  that  class  of  works  which 
have  a  more  than  local  value  and  could  best  be  serviceable 
to  criminal  science  in  our  country.  As  the  science  has  vari- 
ous aspects  and  emphases  —  the  anthropological,  psychologi- 
cal, sociological,  legal,  statistical,  economic,  pathological  — 
due  regard  was  paid,  in  the  selection,  to  a  representation  of 
all  these  aspects.  And  as  the  several  Continental  countries 
have  contributed  in  different  ways  to  these  various  aspects,  — 
France,  Germany,  Italy,  most  abundantly,  but  the  others 
each  its  share,  —  the  effort  was  made  also  to  recognize  the 
different  contributions  as  far  as  feasible. 

The  selection  made  by  the  Committee,  then,  represents 
its  judgment  of  the  works  that  are  most  useful  and  most 
instructive  for  the  purpose  of  translation.  It  is  its  conviction 
that  this  Series,  when  completed,  will  furnish  the  American 
student  of  criminal  science  a  systematic  and  sufficient  ac- 
quaintance with  the  controlling  doctrines  and  methods 
that  now  hold  the  stage  of  thought  in  Continental  Europe. 


GENERAL  INTRODUCTION  ix 

Which  of  the  various  principles  and  methods  will  prove 
best  adapted  to  help  our  problems  can  only  be  told  after 
our  students  and  workers  have  tested  them  in  our  own  ex- 
perience. But  it  is  certain  that  we  must  first  acquaint  our- 
selves with  these  results  of  a  generation  of  European  thought. 
In  closing,  the  Committee  thinks  it  desirable  to  refer  the 
members  of  the  Institute,  for  purposes  of  further  investiga- 
tion of  the  literature,  to  the  "  Preliminary  Bibliography  of 
Modern  Criminal  Law  and  Criminology  "  (Bulletin  No.  1 
of  the  Gary  Library  of  Law  of  Northwestern  University), 
already  issued  to  members  of  the  Conference.  The  Com- 
mittee believes  that  some  of  the  Anglo-American  works 
listed  therein  will  be  found  useful. 

Committee  on  Translations. 
Chairman,  John  H.  Wigmore, 

Dean  of  Northwestern  University  School  of  Law,  Chicago. 

Ernst  Freund, 

Professor  of  Law  in  the  University  of  Chicago. 

Edward  Lindsey, 

Associate  Editor  of  the  Journal  of  the  American  Institute 
of  Criminal  Law  and  Criminology,  Warren,  Penn. 

Maurice  Parmelee, 

Associate  Professor  of  Sociology  in  the   University  of 
Missouri,  Columbia,  Missouri. 

RoscoE  Pound, 

Professor  of  Law  in  Harvard  Law  School,  Cambridge, 
Mass. 

William  W.  Smithers, 

Secretary  of  the  Comparative  Law  Bureau  of  the  Ameri- 
can Bar  Association,  Philadelphia,  Penn. 


EDITORIAL  PREFACE  TO  THIS  VOLUME 

By  MAURICE    PARMELEEi 

The  author  of  this  work,  Gustav  Aschaffenbuhg,  stands 
in  the  front  rank  of  leaders  of  thought  in  modern  criminal 
scFence  in  Germany.  His  work  bears  witness  to  the  valuable 
aid  which  medical  and  psychiatric  studies  must  always 
render  to  criminal  law.  In  its  thoroughly  realistic  applica- 
tion of  social  statistics  to  the  theories  of  criminal  law,  it  occu- 
pies a  place  of  almost  unique  importance  in  the  literature  of 
criminal  science.  Finally,  it  presents  an  original  treatment 
of  the  entire  subject  —  the  Repression  of  Crime  —  which 
may  well  serve  some  day  as  a  model  for  a  work  based  on 
American  statistics,  —  if  reliable  ones  shall  ever  become 
available. 

Dr.  Aschaffenburg  was  born  May  23,  1866,  at  Zwei- 
briicken,  in  the  Palatinate.  Between  1885  and  1890  he 
pursued  his  studies  at  the  Universities  of  Heidelberg,  Wiirz- 
burg,  Freiburg,  Berlin,  and  Strassburg;  taking  his  degree  in 
medicine  at  Strassburg  in  1890,  with  a  thesis  on  "The  Symp- 
tomatology of  Delirium  Tremens."  Studying  afterwards  in 
Vienna  (with  Meinert  and  Krafft-Ebing)  and  in  Paris,  he 
then  became  Assistant  in  Professor  Kraepelin's  psychiatric 
clinic  at  Heidelberg.  (To  American  students  the  names  of 
Kraepelin  and  Krafft-Ebing  are  well  known  as  among  the 

*  Associate  Professor  of  Sociology  in  the  University  of  Missouri;  au- 
thor of  "  Principles  of  Anthropology  and  Sociology  in  their  Relations  to 
Criminal  Procedure,"  etc. 


Xll  PREFACE 

most  famous  psychiatrists  of  Europe.)  At  Heidelberg  he 
became  successively  Lecturer  (1895)  and  Assistant-Professor 
(1900). 

In  1901  he  went  to  Halle  (an  der  Saale)  as  Medical  Director 
of  the  Department  for  Insane  Criminals.  Since  1904  he  has 
been  at  Cologne,  as  Professor  of  Psychiatry  in  the  Academy 
of  Practical  Medicine  and  Medical  Director  of  the  Psychiatric 
Clinic. 

Dr.  Aschaffknburg's  numerous  published  works  cover 
varied  aspects  of  crime  and  mental  disease.^  In  1905  he 
founded  the  Monthly  Journal  of  Criminal  Psychology  and 
Criminal  Law  Reform,  of  which  he  has  since  been  editor-in- 
chief;  his  associate  editors  are  von  Liszt,  professor  of  criminal 
law  in  Berlin,  von  Lilienthal,  professor  of  criminal  law  in 
Heidelberg,  and  Kloss,  judiciary  counsellor  in  Hamm.  In 
1912  he  began  (with  Professor  Kriegsmann  of  Kiel)  a  series 
entitled  "Library  of  Criminalistics,"  of  which  one  volume 
has  thus  far  appeared. 

The  present  work,  under  the  title  "Das  Verbrechen  und 
seine  Bekampfung,"  was  first  published  in  1903,  and  went  into 
a  second  edition  in  1906;  the  author  has  further  revised  it  for 
the  present  translation.  It  is  one  of  Germany's  most  notable 
contributions,  among  works  having  a  general  scope  and  an 
importance  transcending  national  boundaries.  In  the  three 
principal  continental  countries,  a  special  trend  of  mastership 
has  always  been  noticeable,  —  Italy  emphasizing  the  anthro- 
pological side  of  crime  (and  secondarily  the  social),  France 

1  "Experimental  Studies  in  Association"  (1895-1902);  "  Criminal  Law  " 
in  Hoch's  "Handbook  of  Legal  Psychiatry"  (1901,  1906);  "Penal  Treat- 
ment of  Recidivists,  and  Habitual,  and  Professional  Offenders"  (1907); 
"  Prison  or  Asylum?  "  (1908);  "  Psychasthenic  Conditions  "  in  the  "  Hand- 
book of  Nervous  Therapeutics"  (1909);  "Treatment  of  Dangerous  Luna- 
tics and  Habitual  Drunkards  "  in  the  "  Comparative  Survey  of  German  and 
Foreign  Criminal  Law"  (1909);  "  Protection  of  Society  against  Dangerous 
Lunatics"  (1912);  "Handbook  of  Psychiatry"  (in  collaboration;  1911  +). 


PREFACE  XUl 

the  social  side  (and  secondarily  the  anthropological),  and 
Germany  the  psychological  side.  And  in  each  country  a  vast 
number  of  useful  contributions  have  only  a  local  application. 
A  book  which  takes  account  of  all  factors  and  has  more  than 
local  value  is  a  rarity,  and  even  then  its  author  is  not  always  a 
master  speaking  from  mature  experience.  The  present  work 
has  made  its  place  as  one  of  those  books  which  will  live  for 
many  years  to  come  and  bear  a  message  in  all  countries. 

The  first  two  parts  of  this  book  are  devoted  to  a  statistical 
study  of  the  causes  of  crime,  based  in  the  main  upon  data 
from  Germany.  The  conclusions  reached  by  the  author  with 
regard  to  season,  race,  religion,  urban  and  rural  life,  and  occu- 
pation as  causes  of  crime  are  much  the  same  as  those  of  similar 
studies  of  crime.  He  regards  alcoholism  as  one  of  the  most 
important  causes  of  crime.  While  recent  investigations  by 
Professor  Karl  Pearson  and  his  co-workers  at  the  Galton 
Eugenics  Laboratory  in  London  have  led  to  an  opinion  not 
so  extreme  as  the  author's  as  to  the  physical  effects  of  alco- 
holism upon  the  offspring,  nevertheless  it  remains  true  that 
indirectly  in  its  effect  upon  the  training  and  bringing  up  of 
offspring,  as  well  as  directly,  alcoholism  is  a  powerful  force 
for  crime. 

In  view  of  the  present  more  or  less  widespread  movement 
in  this  country  to  exterminate  prostitution,  it  is  worth  while 
to  note  the  opinion  of  the  author,  very  emphatically  expressed, 
that  it  is  impossible  to  exterminate  this  social  evil,  and  that 
it  is  wiser  for  governments  to  regulate  it  and  keep  it  under 
strict  surveillance  than  to  make  futile  attempts  to  exterminate 
it  which  may  cause  more  harm  than  good.  At  the  same  time 
he  advocates  severe  repressive  measures  against  procuration. 
His  discussion  of  economic  conditions,  such  as  fluctuating 
wages  and  prices,  strikes,  etc.,  as  causes  of  crime,  though 
necessarily  brief,  is  interesting  and  suggestive. 


xiv  PREFACE 

In  discussing  the  individual  causes  of  crime,  the  author, 
like  most  German  criminologists,  takes  a  very  unfavorable 
attitude  towards  the  theory  of  Lombroso  and  certain  other 
criminologists  that  certain  inborn  abnormal  physical  char- 
acteristics are  frequent  causes  of  crime.  At  the  same  time 
the  author  believes  that  abnormal  mental  characteristics  are 
prevalent  among  criminals,  many  of  whom  are  either  feeble- 
minded or  insane  in  varying  degrees.  His  low  estimate  of 
the  importance  of  these  abnormal  personal  characteristics 
is  revealed  by  his  classification  of  criminals,  in  which  there  is 
scant  recognition  of  the  part  played  by  these  characteristics 
in  the  causation  of  crime.  These  personal  characteristics 
cannot  be  studied  by  the  quantitative  methods  of  statistics 
as  well  as  the  social  causes  of  crime,  because  there  are  qualita- 
tive differences  involved  which  cannot  be  accurately  meas- 
ured. So  that  a  statistical  study  of  these  characteristics  is 
not  usually  as  fruitful  as  a  similar  study  of  the  social  causes. 

In  the  third  part,  devoted  to  the  measures  to  be  used  against 
crime,  the  author  discusses  several  measures,  such  as  the  in- 
determinate sentence  and  probation,  which  are  well  known 
in  this  country,  since  they  have  been  used  here  more  than 
anywhere  else.  His  brief  statement  of  the  fundamental 
principles  upon  which  these  and  all  other  penal  measures 
should  be  based  is  excellent.  He  is  very  certain  that  penal 
responsibility  should  be  determined  entirely  according  to  a 
biological  and  social  criterion  and  not  at  all  according  to  a 
metaphysical  or  theological  theory  of  a  free  will.  Unfor- 
tunately many  of  the  American  criminologists,  perhaps  the 
majority  of  them,  have  not  as  yet  seemed  willing  to  take  this 
position. 

Throughout  this  work  Dr.  Aschaffenburg  displays  great 
caution  in  the  use  of  statistics,  and  a  most  judicial  attitude  in 
expressing  his  opinions.    It  is  an  excellent  thing  that  a  book 


PREFACE  XV 

of  this  nature  has  been  included  in  the  Modern  Criminal 
Science  Series ;  for  it  is  a  good  example  of  the  kind  of  study  of 
which  there  is  great  need  in  this  country.  The  statistical 
method  is  the  only  exact  method  of  learning  many  things 
about  the  causation  of  crime  and  the  effectiveness  of  the  dif- 
ferent kinds  of  penal  treatment.  In  this  country  we  still  lack 
adequate  means  of  gathering  the  necessary  data,  while  not 
enough  analysis  is  made  of  such  data  as  we  have.  It  is  to  be 
hoped  that  this  book  will  serve  as  a  stimulus  to  increase  the 
statistical  study  of  crime  in  this  country. 

Untversitt  of  Missouri, 
January,  1913. 


INTRODUCTION  TO  THE  ENGLISH 
VERSION 

By  ARTHUR  C.  TRAIN » 

Practical  works,  especially  interesting  and  readable  works, 
on  criminology  and  penology  are  rare,  and  the  subjects  them- 
selves are  generally  regarded  as  depressing  and  distasteful. 
We  in  America  are  interested  in  the  picturesque  side  of  the 
criminal  and  in  his  capture  by  astute  officers  of  the  law,  and 
detective  stories  have  an  amazing  sale.  But  once  the  crook 
is  safely  locked  up  we  turn  to  something  else.  Criminals 
and  prisons  are  associated  in  our  minds  with  rough  manners, 
coarse  food  and  bad  smells.  Statistics  bore  us.  It  is  easier 
and  pleasanter  to  be  interested  in  hospitals  or  organized 
charity.  But  of  course  there  are  in  fact  few  subjects  of 
greater  importance  than  these  two,  involving  as  they  do  the 
moral  health  of  the  body  politic,  the  protection  of  property, 
and  our  own  personal  security. 

In  Europe,  and  especially  in  Germany,  minor  public  offi- 
cials receive  a  particular  education  and  training  for  their 
duties.  I'here  is  a  numerous  and  efficient  civil  service. 
With  us  most  public  officers  hold  their  places  by  the  grace 
of  some  "boss,"  and  get  their  "jobs"  as  a  return  for 
political  services  rendered.  Some  of  our  court  clerks  were 
originally  bar  keepers,  and  many  of  our  prison  officers  have 
had   little  better   preparation  for  their   tasks.     Those   em- 

1  Former  Assistant  District  Attorney  for  New  York  County,  author  of 
"The  Prisoner  at  the  Bar"  (2d  ed.  1908),  "True  Stories  of  Crime" 
(1909),  "  Courts,  Criminals,  and  the  Camorra  "  (1912),  etc. 


xvili  INTRODUCTION  TO  THE  ENGLISH  VERSION 

ployed  in  the  minor  functions  of  the  administration  of 
criminal  justice,  and  particularly  in  and  about  prisons  and 
penitentiaries,  are  apt  to  be  persons  who  are  unable  to  secm"e 
other  and  more  attractive  work.  Thus  there  is  a  lack  of  intel- 
ligent observation  as  to  the  working  of  our  institutions,  and 
consequently  a  dearth  of  reliable  data  upon  which  to  base 
scientific  conclusions.  Our  progress  is  apt  to  be  less  a  steady 
growth  than  an  accidental  jerk  in  the  right  direction.  Some- 
times it  turns  out  to  be  the  wrong  direction.  Not  knowing 
very  much  about  the  subject,  and  being  in  a  position  to  find 
out  less,  our  legislatures  seize  new  ideas  (supposed  to  be  in 
the  nature  of  reform)  and  adopt  them  on  the  merest  suggestion 
of  sentimental  women  and  political  agitators.  These  ideas 
may  be  good  ones,  —  stolen,  or  rather  borrowed,  from  older 
countries,  who  have  evolved  them  by  years  of  study  and  ob- 
servation. Sometimes,  however,  these  ideas  are  schemes  to 
put  money  in  the  pockets  of  contractors  or  defunct  politicians 
on  the  public  pay  roll. 

There  are  practically  no  penal  or  criminal  statistics  in  the 
United  States  that  have  any  real  value,  although  this  will  not 
long  be  so.  At  the  present  time  few  reliable  conclusions  can 
be  reached  in  regard  to  the  spread  and  causes  of  crime  or  the 
various  means  of  repressing  it.  Until  economic  conditions 
change  fundamentally  and  politics  is  elevated  to  a  moral 
science  we  shall  probably  never  be  in  so  favorable  a  position 
to  study  these  things  as  our  more  serious-minded,  more 
economically  contented,  and  vastly  more  painstaking  con- 
tinental neighbors.  What  books  we  have  on  these  important 
subjects  are  apt  to  be  either  superficial  and  sentimental, 
or  else  so  dry  and  prosy  that  all  interest  is  killed  at  the  end  of 
three  paragraphs. 

For  this  reason  a  work  like  the  present,  which  could  only 
have  been  written  by  a  German  about  Germany,  and  which. 


INTRODUCTION  TO  THE  ENGLISH  VERSION     Xix 

based  largely  on  the  author's  experience,  combines  with  it 
the  fruits  of  years  of  study  and  general  observation,  is  en- 
lightening and  invaluable.  Such  a  book  could  not  have  been 
produced  in  America.  The  author's  concluding  paragraph 
well  describes  the  attitude  with  which  this  scholarly  and 
broad-minded  undertaking  has  been  performed: 

"Only  dispassionate  consideration  that  views  impartially 
the  phenomena  which  we  call  crime,  which  observes  Qist  and 
then  concludes,  —  in  a  word,  only  the  natural  scientific 
method,  —  can  smooth  the  way  that  leads  to  a  knowledge  of 
crime  and  criminals." 

It  is  in  the  matter  of  observation  that  the  author  performs 
his  most  important  service.  He  is  far  from  being  a  propa- 
gandist, but  on  the  other  hand,  he  is  not  slow  to  demolish 
what  he  regards  as  unsubstantiated  theories,  based  on  inade- 
quate or  equivocal  data.  His  analysis  of  statistics  and  his 
comment  upon  their  probative  value  —  could  be  pondered 
with  profit  by  most  other  writers  upon  this  and  similar  subjects 
of  sociologic  interest.  With  the  premise  that  at  their  best 
all  criminal  statistics  are  apt  to  be  highly  misleading  and  of 
doubtful  significance,  —  he  weighs  the  vast  mass  at  his  dis- 
posal and  considers  their  limitations.  He  wisely  points  out 
that  what  acts  are  regarded  as  crimes  differ  widely  in  different 
places;  that  many  misdemeanors  are  merely  infractions  of 
arbitrary  regulations;  that  temporary  causes  (such  as  grain 
famine)  can  be  of  startling  consequence;  that  police  activity 
or  laxness  can  multiply  or  divide  the  total  of  apparent  crim- 
inality; that  arrests  are  no  positive  indication  of  crime,  and 
that  convictions  to  be  so  must  be  based  on  an  effective  ad- 
ministration of  criminal  justice.  Moreover,  he  shows  the 
inadequacy  of  the  data  obtainable  in  different  countries.  Most 
vital  of  all,  he  points  out  the  danger  of  making  sweeping 
deductions  from  extremely  limited  facts. 


XX      INTRODUCTION  TO  THE  ENGLISH  VERSION 

The  exhaustive  tables  compiled  for  this  interesting  and 
instructive  treatise  are  highly  illuminating,  showing  as  they 
do  the  incontrovertible  connection  between  crimes  against 
property  and  economic  conditions,  sexual  crimes  and  the  sea- 
son of  the  year,  etc.  There  is  hardly  any  subject  connected 
with  the  causation  of  crime  that  does  not  come  in  for  dis- 
cussion and  analysis,  accompanied  by  a  light-shedding  array 
of  figures  drawn  from  local  German  sources. 

His  conclusions  with  respect  to  the  effect  of  alcoholic 
stimulants  on  criminality  are  significant  in  a  country  where 
heavy  drinking  is  regarded  with  leniency;  and  his  observations 
on  the  small  amount  of  criminality  among  prostitutes  indicates 
that  this  class  of  unfortunates  among  women  corresponds 
to  that  class  among  men  which  steals  simply  because  it  is 
"the  easiest  way"  to  live.  Poverty  and  alcohol  are,  he 
believes,  the  two  proximate  causes  of  the  great  body  of  crimes. 

It  is  with  some  personal  satisfaction  that  the  writer  finds 
his  own  observations  as  to  the  lack  of  common  physical  char- 
acteristics among  criminals  corroborated  by  such  an  eminent 
observer,  who  comments  on  the  temptation  on  the  part  of 
criminologists  to  seek  for  external  signs  of  an  inward  lack  of 
spiritual  grace,  and  the  failure  of  Lavater,  Gall,  Spurzheim, 
and  Lombroso  to  demonstrate  their  existence  and  significance. 
The  problem  remains  unsolved  and  a  disposition  to  generalize 
about  the  physiology  and  psychology  of  a  "criminal  born" 
class  is  less  observable  than  heretofore.  Our  author's  dis- 
criminative ability  in  this  respect  contrasts  favorably  with 
Lombroso's  surprising  lack  of  critical  faculty  and  his  willing- 
ness to  find  far-reaching  significance  in  masses  of  immaterial, 
trivial,  and  otherwise  explainable  details. 

On  the  whole,  our  author's  attitude  is  hopeful  rather  than 
optimistic,  which  may  perhaps  be  attributed  to  his  proximity 
to  his  subject  and  his  unwillingness  to  accept  every  proposed 


INTRODUCTION  TO  THE  ENGLISH  VERSION    xxi 

remedy  as  a  panacea.  He  is  not  handicapped  by  the  feeling 
that  to  question  the  arrival  of  an  immediate  millennium 
is  unpatriotic.  He  weighs  the  possibilities  and  finds  to  his 
regret  that  "brutality,  recklessness,  and  licentiousness  are 
spreading  more  and  more  in  the  growing  generation,"  that 
"whoever  has  once  got  deep  into  the  mire  of  criminal  life  is 
scarcely  able  to  get  onto  firm  ground  again"  (the  recidivist), 
and  that  administratively  "we  have  reached  a  point  where 
the  apparently  firm  foundations  of  criminal  law  appear  to 
quake." 

The  remedies  he  believes  for  these  things  are  to  be  found 
in  those  generally  adapted  to  the  increase  of  economic  pros- 
perity and  the  reduction  of  poverty,  in  education  (particularly 
as  to  the  efiFects  of  alcohol),  in  the  establishment  of  coffee 
and  recreation  rooms,  in  the  development  of  regard  for  law, 
in  the  care  of  neglected  children  and  of  released  convicts,  etc. 
And  he  makes  a  strong  argument  based  on  observation  and 
statistics,  in  favor  of  the  "conditional  sentence"  (correspond- 
ing to  our  "suspended  sentence"),  the  parole,  and  the  aboli- 
tion of  fixed  terms  of  imprisonment. 

It  is  characteristic  that  the  author  does  not  advance  these 
propositions  as  necessarily  of  established  desirability,  although 
it  seems  that  they  have  been  so  regarded  in  this  country  for 
some  time.  He  bases  his  arguments  and  advocates  their 
adoption  not  on  theory  but  on  collected  data,  while  we  usu- 
ally proceed  on  the  plan  of  trying  anything  that  looks  good 
to  us,  and  then  discarding  it  if  we  are  disappointed  in  the 
results.  Not  all  of  his  proposals  are  such  as  to  commend  them- 
selves to  a  people  among  whom  respect  for  law  and  effective- 
ness of  procedure  are  so  far  below  those  of  the  author's  ()\\'n 
countrymen.  His  suggestion  that  the  State  might  re-iniburse 
every  citizen  for  the  damage  sustained  by  him  from  the  crimi- 
nal act  of  another  is  not  likely  to  be  adopted  in  a  land  where 


XXll    INTRODUCTION  TO  THE  ENGLISH  VERSION 

such  a  doctrine  would  undoubtedly  immediately  result  in  a 
deluge  of  criminal  prosecutions  instigated  solely  by  a  desire 
for  financial  profit  on  the  part  of  the  complainants. 

The  most  important  lesson  to  be  learned  from  this  admira- 
ble book  is  that  which  obviously  the  author  has  most  at  heart, 
namely,  that  as  Krohne  says,  "even  if  you  have  the  best  law, 
the  best  judge,  the  best  sentence,  and  the  prison  official  is 
not  efficient,  you  might  as  well  throw  the  statute  into  the  waste 
basket  and  burn  the  sentence."  We  in  America  (indeed  it 
is  not  confined  to  us)  are  prone  to  find  in  the  mere  declaration 
of  our  principles  known  as  law  the  final  solution  of  all  problems 
and  the  end  of  our  labors. 

We  cheerfully  pass  Sunday  closing  ordinances  and  buy 
drinks  at  the  "blind  tiger,"  or,  if  we  are  not  so  hypocritical 
as  to  do  this,  innocently  trust  to  the  honesty  of  our  fellow 
citizens  not  to  do  so  either.  But  laws  are  only  printed  words 
on  paper.  Theories  of  government  and  of  the  administration 
of  justice  are  of  no  value  so  long  as  they  remain  only  theories. 
You  can  have  the  best  system  on  earth  and  unless  you  have 
the  right  men  to  carry  it  on  you  will  have  corruption  and 
chaos.  You  may  have  a  prison  so  architecturally  beautiful 
and  so  sanitary  in  its  arrangements  that  it  will  delight  every 
committeeman  who  goes  to  inspect  it,  but  if  the  wrong  man 
is  in  charge  it  will  be  a  den  of  vice  and  a  hell  on  earth. 

The  author  urges  that  the  training  of  judges  should  include 
some  (voluntary)  temporary  service  in  penal  institutions. 
We  may  doubt  whether  the  uncertainties  of  political  life 
would  lead  many  candidates  for  judicial  office  here  to  qualify 
themselves  in  such  fashion.  Such  a  proposition  is  feasible 
in  Germany,  however,  if  not  in  America.  The  idea  back  of 
the  suggestion  is  a  fundamental  one.  Ours  may  be  a  govern- 
ment of  laws  and  not  of  men,  but  the  fact  remains  that  all 
laws  and  all  institutions  must  be  administered  by  men,  and 


INTRODUCTION  TO  THE  ENGLISH  VERSION    xxiii 

that  so  far  as  society  is  concerned  the  eflFect  of  his  period  of 
imprisonment  upon  the  convicted  criminal  may  be  of  more 
far-reaching  importance  than  his  original  offense.  We  have 
overlooked  the  fact  that  the  imposition  of  sentence  is  not  the 
end  of  the  application  of  criminal  science  but  rather  the 
beginning. 

There  are  few  theories  connected  with  the  causes  and  the 
means  of  repressing  crime  which  are  not  discussed  and  tested 
by  the  data  at  the  author's  command.  As  a  comprehensive 
review  of  the  subject  no  student  of  criminology  can  afford 
to  neglect  so  thorough,  well-balanced,  liberal-minded,  and 
authoritative  a  book  as  this,  and  while  its  scope  is  necessarily 
limited  to  German  institutions  it  is  safe  to  say  that  its  lessons 
are  equally  applicable  to  our  own. 

Arthur  C.  Train. 

June  1,  1913. 


CONTENTS 

PAGE 

Genebal  Introduction  to  the  Modern  Criminal  Science  Series        v 

Editorial  Preface,  by  Maurice  Parmelee xi 

Introduction  to  the  English  Version,  by  Arthur  C.  Train    .    .  xvii 

List  of  Abbreviations  of  Citations  to  Serials  and  Periodicals  xxvii 

INTRODUCTION 

§    1.    Tasks  and  Methods 1 

PART  I 

The  Social  Causes  of  Crime 

§    2.     Classification 15 

§    3.     Crime  and  Season 16 

§    4.     Race  and  Religion 30 

§    5.     City  and  Country;  Occupation 61 

§    6.     National  Customs.     Alcohol 69 

§    7.     Other  Forms  of  Indulgence 88 

§    8.     Prostitution 90 

§    9.     Gambling  and  Superstition 100 

§  10.     Economic  and  Social  Condition 102 

PART  II 

The  Individual  Causes  op  Crime 

§  11.    In  General 123  ^ 

§  12.     Parentage  and  Training 124 

§  13.     Education 136 

§!*•     Age j^ 

•4  15.     Sex C}S^ 

§  16.     Domestic  Status 162 

§  17.     The  Physical  Characteristics  of  the  Criminal 168 

§  18.     The  Mental  Characteristics  of  the  Criminal 178 

§  19.     Mental  Diseases  among  Criminals 186 

§  20.     The  Classification  of  Criminals 198 


xxvi  CONTENTS 

PART  in 
The  Struggle  against  Cbuce 

PAGE 

§  21.     The  Criminal  Physiognomy  of  the  Present      215 

§22.     Prevention 227 

§23.     Responsibility 241 

§  24.     The  Purpose  of  Punishment 250           , 

-.i4-«*.     The  Means  of  Punishment      265  j,*^ 

-§-26.     Indemnification,  Suspended  Sentence,  and  Probational  Release  .  285 

§  27.     The  Abolition  of  Fixed  Terms  of  Punishment 297 

§  28.     The  Treatment  of  Juveniles  and  Partially  Responsible  Persons  .  310 

§29.     Conclusion 317 

Index 325 


LIST  OF  ABBREVIATIONS  OF   CITATIONS 
TO  SERIALS  AND  PERIODICALS 

Abhandlungen  des  kriminalistischen  Seminars.  =  Abhandlungen  des 
kriminalistischen  Seminars  an  der  Universitat  Berlin.  Ed.  von 
Liszt.     Berlin  1888  +  •     Irregularly  ;  new  ser.,  vol.  v.,  1908. 

Allg.  statist.  Archiv.  =  Allgemeines  statistisches  Archiv.,  Tubingen. 
Irregularly. 

Allg.  Zeitschrift  f.  Psych.  =  Allgemeine  Zeitschrift  fiir  Psychiatric 
und  psychisch-gerichtliche  Medicin.  Ed.  Damerow,  Flem- 
ming.  Roller  and  Laehr.     Berlin,  1844  +  . 

Allgemeine  Wiener  medizinische  Zeitung.     Vienna. 

Annates  d'hygiene  publique  et  de  medecine  legale.     Paris,  1829  +  . 

Annales  medico-psycholog.  =  Annales  medico-psychologiques.  Paris, 
1843  + . 

Arch,  di  psich.  e  d'antropol.  =  Archivio  di  psichiatria,  scienze  penali 
ed  antropologia  criminale  (formerly  entitled,  Archivio  di  psichia- 
tria, neuropatologia,  antropologia  criminale  e  medicina  legale). 
Turin,  1880  + . 

Archiv  fiir  Dermat.  =  Archiv  fiir  Dermatologie  und  Syphilis. 
Vienna,  1869  +  . 

Arch.  Krim.  Anthr.  =  Archiv  fiir  Kriminal-Anthropologie  und 
Kriminalistik.     Ed.  H.  Gross.      Graz,  Leipzig,  1899  + . 

Archiv  fiir  Rassen-  und  Gesellschaftsbiologie  =  Archiv  fiir  Rassen- 
und  GeseUschafts-Biologie  einschliessUch  Rassen-  und  Gesell- 
schafts-Hygiene.     Berlin,  1904  + . 

Archiv  fiir  Strafrecht  =  Archiv  fiir  Strafrecht  (originally  A.  fiir 
preussisches  Strafrecht,  then  A.  fiir  gemeines,  deutsches,  und 
preussisches  Strafrecht).  Ed.  Goltdammer  (cited  often  as 
Goltdammer's  Archiv)  ;  afterward  ed.  Mager  and  Hahn  ;  now 
ed.  Kohler,  J.     Berlin,  1853  +  . 

Biologisches  Zentralblatt  =  Biologisches  Centralblatt.  Leipzig. 
Semi-m. 

Blatter  fiir  Gefangniskunde  =  Blatter  fiir  Gefangniskimde ;  Organ 
des  Vereins  der  deutschen  Strafanstaltsbeamten.  Ed.  Ekert, 
G.  and  Wirth,  O.     Heidelberg,  Kassel,  1865  + . 


xxviu     LIST   OF   ABBREVIATIONS   OF   CITATIONS 

Bulletin  de  I'institut  intemationale  de  Statistique.  Rome.  Irreg- 
ularly. 

Bulletin  de  I'Union  Internationale  de  Droit  penal.  See  Mitthei- 
lungen  der  I.  K.  V. 

Mitteil.  der  I.  K.  V.  =  Mitteilungen  der  internationalen  krimina- 
listischen  Vereinigung  (same  as  Bulletin  de  I'Union  Inter- 
nationale de  droit  penal).     Berlin,  Berne,  1889 +  . 

MSchrKrimPsych.  =  Monatssehrift  flir  Kriminalpsychologie  und 
Strafrechtsreform.  Ed.  Aschaffenburg,  Kloss,  von  Lilienthal 
and  von  Liszt.     Heidelberg,  1904  + . 

Statistik  des  Deutschen  Reiches ;  Neue  Folge.  Kriminalstatistik. 
Berlin,  1882 +  . 

Vierteljahrssclirift  f.  gericht.  Medizin  =  Vierteljahrssckrift  fiir 
gerichtliche  Medizin  und  offentliches  Sanitatswesen.  Berlin, 
1852 +  . 

ZStW.  =  Zeitschrift  flir  die  gesammte  Strafrechtswissenschaft.  Ed. 
Dochow,  von  Liszt,  von  Lilienthal  and  Hertz.  Berlin,  1881  + . 

Zeitschrift  fiir  Sozialwissenschaft.     Berlin. 


CRIME  AND  ITS  REPRESSION 


INTRODUCTION 

§  1.  Tasks  and  Methods 

To  the  criminal  judge  the  essential  condition  of  punishment 
is  the  commission  of  an  act  that  the  law  has  branded  as  a 
crime  ^  and  threatened  with  punishment.  "Nullum  crimen 
sine  lege."  This  view,  "the  corner-stone  of  criminal  law,"  ^ 
conforms  to  §  2  of  the  Penal  Code:  "An  act  can  be  punished 
only  if  the  punishment  was  legally  fixed  before  the  act  was 
begun."  In  other  words,  an  act  that  is  a  crime  under  the 
existing  law  ceases  to  be  one  if  the  statute  in  question  is  re- 
pealed. This  is  the  case,  for  instance,  with  §  175,  for  the 
repeal  of  which  many  grounds  have  been  advanced  both  by 
jurists  and  by  physicians.  If  the  demand  for  its  abolition 
should  be  granted,  sexual  intercourse  between  persons  of  the 
male  sex  would  no  longer  be  a  crime. 

On  the  other  hand,  §  2  withdraws  from  the  judge's  sphere 
of  power  all  those  acts  the  codification  of  which  has  been 
omitted,  either  purposely  or  by  inadvertence,  or  the  culpa- 
bility of  which  is  lacking  owing  to  the  wording  of  the  stat- 
utes. There  is  no  lack  of  examples:  the  sexual  intercourse  of 
women  with  one  another,  indecent  acts  committed  by  a  father 
on  his  daughter,^  the  being  an  accessory  to  a  crime  the  prin- 
cipal perpetrator  of  which  is  acquitted  on  the  ground  of  irre- 

1  I  have  used  the  word  "crime"  in  the  following  text, even  when,  according 
to  the  three  divisions  in  our  criminal  code,  I  am  speaking  only  of  an  ofiFense 
or  a  misdemeanor. 

«  Gaupp,  "Zur  Reform  der  §§  173,  174  RStGB."  (MSchrKrimPsych.  I. 
111).  »  IMd. 


2  INTRODUCTION  [§  1 

sponsibility ,  —  all  these  cannot  be  punished.  In  order  better  to 
get  hold  of  procurers  and  panders,  and  to  make  the  thief  of 
electric  power  accountable,  special  statutes  had  to  be  enacted. 

Geyer  ^  wonders  at  the  view,  which  is  a  matter  of  course  to 
the  non-jurist,  that,  when  an  offender  fails  in  his  attempt  to 
commit  a  crime  because  he  does  not  make  proper  use  of  the 
means  that  he  has  chosen,  he  shall  still  be  punishable,  and 
as  an  example  he  mentions  a  cook  who  put  a  few  grains  of 
powder  in  a  dish  under  the  bed  of  her  rival  and  set  them  off 
with  a  match.  Because  her  plan  failed,  and  was  bound  to 
fail,  owing  to  her  inability  to  use  properly  the  means  she  had 
chosen,  the  woman  should  be  acquitted !  Zucker  ^  gives  the 
following  example  of  an  unpunishable  attempt  that  failed  be- 
cause the  object  was  unsuitable:  "In  our  opinion  the  crime  of 
attempted  incest  does  not  exist  when  a  man  cohabits  with  a 
woman,  believing  her  to  be  his  sister  whereas  in  reality  she 
proves  to  be  the  foster  child  of  his  parents."  It  may  be  im- 
possible criminally  to  prosecute  such  a  man;  but,  psychologi- 
cally, the  subsequent  proof  that  there  is  no  blood-relationship 
between  the  persons  does  not  make  the  act  one  w^hit  the  less 
abominable.  On  the  other  hand,  under  some  circumstances 
a  grave  crime  may  be  a  laudable  act,  as,  for  instance,  the  mur- 
der of  Marat  by  Charlotte  Corday,  or  the  act  of  a  mother  who 
steals,  or  prostitutes  herself,  in  order  to  save  her  sick  child. 

The  thinking  judge,  with  whom  the  judgment  of  the  indi- 
vidual case  rests,  and  who  is  not  content  merely  to  establish 
the  purely  external  facts  and  the  applicability  of  a  certain  sec- 
tion and  a  certain  penalty  to  the  act,  cannot  take  much  satis- 
faction in  his  profession.      "A  most  unhealthy  formalism  in 

^  Geyer,  "t)ber  die  sogenannten  untauglichen  VersuchsverhandluLgen " 
(ZStW.  I,  35). 

^  Zucker,  "Noch  ein  Wort  zur  Lehre  vom  untauglichen  Versuche"  (Archiv 
fiir  Strafrecht,  XXX\7.  370). 


§  1]  TASKS  AND  METHODS  3 

the  question  of  punishableness,  and  a  most  far-reaching  judicial 
discretion  in  the  extent  of  the  penalty,  stand  in  contradiction 
to  each  other."  ^  The  wTitten  law  holds  the  judge  within 
rigid  limits,  that  leave  but  little  room  for  the  consideration  of 
psychological  motives.  That  the  circumstances  under  which 
a  crime  is  committed  should  be  taken  into  account,  is  shown 
by  the  pro\'isions  regarding  needy  condition,  extenuating  cir- 
cumstances, irresponsibility  of  insane  persons,  full  and  partial 
immunity  from  punishment,  as  well  as  by  the  fact  that  the 
penalty  is  increased  if  an  ofiPense  is  often  repeated.  And  yet 
these  are  only  a  few  points,  and  are  far  from  enabling  us  to 
do  justice  to  the  psychological  judgment  of  such  a  compli- 
cated phenomenon  as  crime. 
\  For  that  purpose  more  study  is  necessary  than  that  of  the 
commentaries  on  the  criminal  code.  "I  see  the  deepest  reason 
for  many  of  the  defects  of  our  present  conditions  in  the  purely 
juristic  education  of  our  theoretical  and  practical  criminalists. 
I  do  not  for  a  moment  demand  that  the  criminal  judge  and 
lawyer  should  make  anthropological  or  statistical  investiga- 
tions; but  I  do  demand  of  him  that  he  should  be  as  familiar 
with  the  results  of  criminal  biology  and  criminal  sociology  as 
with  the  provisions  of  the  criminal  code  and  the  decisions  of 
the  national  courts."  So  says  von  Liszt,^  who  thus  values 
the  study  of  crime  as  a  social  phenomenon  and  of  the  nature 
of  the  criminal  as  highly  as  he  does  the  knowledge  of  the 
laws  —  and  rightly  so.  Our  administration  of  criminal  law  is 
no  abstract  science,  but  an  applied  policy  towards  criminals. 

The  necessity  of  establishing  its  foundations  more  firmly 
cannot  be  overlooked,  except  by  him  who  will  not  or  cannot 
see  what  criminality  means  to  the  State.    The  criminal  sta- 

^  Wack,  "Zukunft  des  Strafrechts."    Rede  gehalten  in  DUsseldorf  auf  der 
Jahresversammlung  der  Rheinisch-Westfalischen  Gefiingnis-Gesellschaft. 
^  von  Liszt,  "  Kriminalpolitische  Aufgaben"  (ZStW.  IX,  456). 


4  INTRODUCTION  [§  1 

tistics  for  the  year  1909  show  536,603  persons  convicted  of 
629,271  acts,  —  1192  convicts  per  100,000  persons  of  pun- 
ishable age.  And  it  must  be  borne  in  mind  that  the  statistics 
deal  solely  with  crimes  and  offenses  against  national  laws, 
not  with  those  against  individual  State  laws,  and  thus  not 
with  the  numberless  minor  offenses,  which  can  safely  be  esti- 
mated at  2,000,000,  at  least.  Whoever  knows  this  (and  every 
jurist  should  know  it)  is  curiously  affected  by  the  common  at- 
tempt to  weaken  the  effect  of  these  figures  by  calling  attention 
to  the  many  cases  of  neglected  vaccination  and  such  minor 
matters.  The  seriousness  of  the  state  of  affairs  which  makes 
such  trivial  remarks  entirely  inappropriate  most  certainly 
demands  a  clear  and  unobstructed  view. 

In  1909  the  German  courts  pronounced  32  death  sentences 
and  condemned  5  persons  to  prison  for  life;  the  sum  of  the 
penitentiary  ("  Zuchthaus ")  sentences  would  amount  to  at 
least  22,000  years;  of  the  prison  sentences,  to  52,000  years. 
Von  Krohne  estimates  the  cost  of  criminal  prosecutions  and 
the  carrying  out  of  sentences  in  Prussia  at  120  million  marks. 
Is  it  necessary  to  add  a  word  of  explanation,  as  to  why  the 
judge  should  leave  the  courtroom  and  the  study  and  go  out 
into  life,  among  the  people,  so  that  he  may  learn  to  know  crim- 
inals, and  then,  in  a  different  way  and  better  equipped,  take 
up  again  the  struggle  against  crime.'' 

Whoever  sees  in  the  science  of  criminal  law  merely  a  train- 
ing for  logical  thought,  and  is  glad  when  he  has  found  the  dead 
formula  that  fits  the  living  deed,  will  find  nothing  significant 
in  the  figures  quoted.  But  he  who  is  not  satisfied  to  judge  ac- 
cording to  the  letter  of  the  law  will  not  care  to  proceed  without 
contact  with  the  daily  life  of  the  people,  and,  above  all,  he 
will  not  be  content  to  lack  the  knowledge  of  criminal  sociology 
which  is  offered  him  in  the  statistics  of  criminals  or  of  moraUty. 

They  show  under  what  external  circumstances  a    crime 


§1]  TASKS  AND  METHODS  5 

comes  to  be  committed,  how  the  world  in  which  we  live  exer- 
cises its  influence  and  directly  and  indirectly  gives  the  in- 
centive to  criminal  acts.  But  they  also  permit  us  to  perceive 
that,  besides  the  social  processes  that  operate  on  the  individual, 
there  are  also  in  him  physical  and  mental  causes.  Thus  we 
gain  a  deepened  insight  into  the  psychogenesis  of  crime.  A 
wealth  of  new  aspects  confronts  us,  —  new  questions  to  which 
answers  cannot  always  be  given.  For  there  can  be  no  doubt 
on  this  point,  that  the  psychology  of  crime  and  of  the  crim- 
inal is  no  finished  science  —  it  is  too  young  for  that.  But  it 
uncovers  one  after  another  the  causes  that  produce  crime; 
it  illuminates  the  depths  that  are  hidden  from  the  judge  with 
his  ever-ready  decision;  it  shakes  the  foundations  of  the  crim- 
inal law.  Not,  however,  that  we  are  to  watch  in  despair  the 
collapse  of  an  apparently  firmly  built  structure.  Criminal 
psychology  seeks  to  probe  the  causes  of  crime  and  to  measure 
the  eflBcacy  of  punishments;  on  the  new  foundation  it  hopes 
to  build  up  a  new  criminal  law,  which  will  protect  society 
better  than  the  present  one  and  secure  the  individual  from 
the  attacks  of  the  criminal.    That  is  its  goal. 

But  which  is  the  path  that  leads  to  it.'* 

"Criminals  must  not  be  regarded  as  the  refuse  of  society, 
they  are  rather  a  part  of  it,  —  as  a  wound  is  a  part  of  the 
body."  This  remark  of  Corre  ^  is  as  striking  as  it  is  true;  the 
criminal  world  is  an  inseparable  component  part  of  human 
society,  with  which  it  is  most  closely  united  in  growth  and 
from  which  it  continues  to  draw  fresh  nourishment.  Only 
within  and  in  relation  to  society  can  crime  come  into  being. 
But  if  it  is  really  the  sore  spot  on  the  social  body,  we  are 
tempted  to  extend  the  comparison,  and  to  proceed  with  the 
study  of  criminality  in  the  same  way  that  clinical  research  is 
usually  undertaken. 

^  Corri.  "  Essai  sur  la  criminality,"  p.  76. 


6  INTRODUCTION  [§  1 

The  first  question  to  be  considered  in  medicine  is  the  cause 
and  origin  of  a  disease,  —  the  etiology;  then  the  symptoms; 
from  these  we  form  the  diagnosis,  the  distinction  from  other 
diseases;  and  finally  we  come  to  therapy.  Proceeding  in  this 
way,  we  should  first  have  to  investigate  the  causes  of  crim- 
inality; then  the  different  forms  under  which  crime  appears. 
The  diagnosis  corresponds  to  the  question  of  the  classification 
of  criminals,  to  the  question  of  the  existence  of  Lombroso's 
"born  criminal."  When  we  are  at  last  in  possession  of  cer- 
tain knowledge  in  this  direction,  when  we  can  survey,  as  far  as 
possible,  the  nature  of  crime  and  its  causes,  then  we  come  to 
consider  the  most  important  practical  question:  How  shall 
we  treat  this  sore  on  the  body  of  society.'*  We  shall  have  to 
consider  and  to  judge  the  existing  measures,  and  —  if  pre- 
vious methods  of  treatment  should  prove  to  be  inadequate  — 
to  find  out  what  can  be  done,  —  a  task  as  important  as  it  is 
absorbing. 

The  comparison  with  natural  scientific  subjects  shows  us, 
not  only  the  direction  we  should  follow,  but  also  the  method 
we  should  use,  —  that  of  objective  observation.  When  we 
have  seen  under  what  external  circumstances  a  crime  is  com- 
mitted, we  shall  have  to  try  to  find  the  relation  between  the 
crimes  committed  and  the  phenomena  of  life  that  are  familiar 
to  us. 

Von  Liszt  ^  has  come  forward  in  a  lecture  as  an  exponent 
of  the  view  that  the  roots  of  criminality,  in  so  far  as  it  is  not 
a  social  symptom  of  disease,  must  be  looked  for  in  normal 
social  life.  I  am  entirely  of  his  opinion;  and  I  have,  therefore, 
endeavored  not  to  base  my  explanations  on  individual  cases, 
which  merely  show  how  life  and  its  irritants  affect  one  person, 
but  on  the  phenomena  of  masses,  the  most  frequent  crimes. 

^  "Die  gesellschaftlichen  Faktoren  der  Kriminalitat "  (ZStW.  XXIII, 
203). 


§  1]  TASKS  AND  METHODS  7 

With  the  individual  case,  absorbing  as  it  may  be  psychologi- 
cally, the  peculiarity  of  the  individual  obscures  our  view  of 
the  universally  valid  causes,  and  chances  cannot  be  separated 
from  the  regular  phenomena.  We  shall,  therefore,  without 
denying  the  importance  of  observing  individual  cases  in  de- 
tail, keep  in  the  main  to  the  large  numbers  that  the  criminal 
statistics  ^  offer  us. 

But  here  we  meet  at  once  with  two  great  difficulties.  One 
lies  in  the  collection  of  statistical  material,^  the  other  in  the 
making  use  of  it.  It  is  not  feasible  to  use  absolute  numbers 
as  a  measure  for  comparison.  We  shall  see,  for  instance,  that 
in  England,  during  the  periods  from  1861  to  1863  and  from 
1879  to  1881,  crimes  against  the  person  were  as  100:102, 
crimes  against  property,  as  100:110,  yet  this  does  not  show 
that  these  crimes  have  increased.  As  a  matter  of  fact,  the 
population  has  increased  by  more  than  30%  in  the  same 
period  so  that  it  would  be  a  gross  error  to  assume  that  thefts 
and  cases  of  assault  and  battery  have  increased.  It  is  not 
even  entirely  correct  to  establish  an  exact  parallel  between 
the  increase  in  crime  and  the  increase  in  the  population.  The 
increase  in  the  population  is  felt  chiefly  in  the  swelling  of  the 
number  of  minors,  and  the  percentage  of  crime  among  these 
is  greater  than  among  adults.  With  this  restriction  —  the  de- 
fect cannot  be  removed  by  calculation  —  the  method  used 
in  the  criminal  statistics  of  the  German  Empire  (that  is,  of 
relating  the  crimes  committed  to  the  number  of  inhabitants 
over  twelve  years  of  age)  may  be  regarded  as  the  fairest. 

'  German  criminal  statistics  appear  annually,  excellently  revised  and  ar- 
ranged in  one  volume,  published  by  the  Imperial  Statistical  Bureau.  Putt- 
kammer  und  Miihlbrecht,  Berlin. 

^  Compare,  as  regards  the  whole  question:  von  Oettingen,  " Moralstatistik," 
3d  ed.,  p.  440;  von  Scheel,  "Zur  Einflihrung  in  die  Kriminalstatistik,  insbe- 
sondere  diejenige  des  Deutschen  Reiches"  (Allg.  statist.  Archiv.,  I,  185); 
von  Mayr,  "  Die  Nutzbarmachung  der  Kriminalstatistik  "  (MSchrKrimPsych. 
I,  42). 


8  INTRODUCTION  [§  1 

But  even  the  relative  numbers  cannot  be  used  as  they  stand- 
Above  all,  it  must  be  considered  at  what  stage  of  the  legal 
proceedings  the  census  must  be  taken.  Should  the  crimes,  the 
accused  persons,  or  the  convicts  be  counted?  In  the  crimes 
we  find  the  act,  but  not  its  producer,  —  the  consideration  of 
whom  is  the  most  important  point  for  us.  In  many  crimes 
several  persons  are  involved.  Of  the  punishable  acts  which 
were  followed  by  convictions  in  1903  in  Germany,  45,437 
(=  7.5%)  were  committed  by  several  persons.  These  cannot 
be  disregarded,  especially  as  they  involve  at  least  100,000 
criminal  persons. 

Among  the  accused,  again,  there  are  many  innocent  per- 
sons, as  well  as  others  whose  guilt  cannot  be  proved.  The 
number  of  persons  acquitted  amounted  in  1909  to  not  less 
than  148,211,  more  than  a  fifth  of  all  those  accused.  All 
these  are  without  significance  to  us,  though  not  in  every  re- 
spect. Acquittals,  indeed,  are  subject  in  the  highest  degree 
to  the  effect  of  the  general  feeling  for  law,  to  current  popular 
views.  This  is  shown  by  a  comparison  of  the  administration 
of  justice  in  different  countries;  I  need  only  mention  the  fre- 
quent acquittals  in  Latin  countries  of  men  driven  to  crime 
by  the  unfaithfulness  of  their  wives.  But  even  with  us  similar 
phenomena  are  not  lacking.  Every  attorney  who  is  defend- 
ing a  person  charged  with  arson  objects,  in  his  cUent's  interest, 
to  having  farmers  on  the  jury,  because  experience  has  shown 
that  in  doubtful  cases  they  are  more  likely  to  find  the  accused 
guilty  than  are  men  who  five  in  cities;  and,  on  the  contrary, 
when  a  man  is  charged  with  violation  of  oath,  his  attorney 
will  prefer  peasants  as  jurors.  Even  the  judge  is  more  influ- 
enced by  popular  views  than  he  realizes,  and  pays  tribute  to 
them.  This  is  no  reproach;  to  assume  that  the  judge  is  not 
also  a  child  of  his  age  and  environment  would  be  to  deny 
the  foundations  of  our  whole  thought.    Looked  at  from  this 


§  1]  TASKS  AND  METHODS  9 

point  of  view,  acquittals  are  of  the  greatest  interest;  they 
afiford  us  an  insight  into  the  opinions  of  certain  times  and  cer- 
tain peoples. 

Another  objection  to  making  use  of  the  number  of  charges 
brought  is  their  dependence  on  the  skill  of  the  police;  it  is 
largely  a  matter  of  the  cleverness  and  activity  of  the  police 
whether  a  criminal  prosecution  is  possible.  And,  finally, 
the  "criminal  irritability"^  makes  itself  felt,  which  causes 
the  public  to  claim  the  aid  of  the  criminal  judge  in  ever 
increasing  degree. 

Thus  we  come  to  the  use  of  the  number  of  convicted  persons. 
In  this  way  we  are  of  course  obliged  to  leave  out  of  account 
all  the  numerous  cases  in  which  the  criminal  is  unknown. 
But,  on  the  other  hand,  in  considering  the  convicts,  we  are 
able  to  ascertain  most  of  the  factors  that  come  under  con- 
sideration in  seeking  out  the  origin  of  the  crime.  Hence  it  is 
the  number  of  convicts  that  seems  best  adapted  for  our  use. 
The  trivial  errors  that  still  cling  to  these  statistics  can  scarcely 
be  avoided;  the  advantage  of  absolute  accuracy,  which  their 
correction  would  give,  would  be  far  too  slight  to  justify  the 
vast  amount  of  labor  that  would  be  necessary. 

As  has  been  mentioned,  the  minor  offenses  are  lacking  in 
our  Imperial  statistics;  thus,  they  leave  unnoticed  the  whole 
great  army  of  beggars,  tramps,  and  prostitutes.  As  regards 
these,  we  must  seek  other  sources.  Some  crimes  are  repre- 
sented in  the  statistics  by  figures  that  are  far  below  the  reality. 
This  is  true,  for  instance,  of  offenses  under  §  175,  and  es- 
pecially of  criminal  abortion,  of  which  Lewin  ^  rightly  says: 
"Such  an  open,  universally  known,  and  universally  disre- 

*  Seuffert,  "Die  Bewegung  im  Strafrechte  wahrend  der  letzten  dreissig 
Jahre,"  Dresden,  von  Zahn  &  Jansoh,  1901,  p.  64. 

"^  Levnn  und  Breuning,  "Die  Fruchbibtreibung  durch  Gifte  iind  andere 
Mittel,"  Berlin,  1899,  Aug.  Hirschwald,  p.  7. 


10  INTRODUCTION  [§  1 

garded,  mockery  of  the  law  as  exists  should  not  be  permitted 
to  continue."  If,  as  regards  this  offense,  statistics  leave  us 
in  the  lurch,  we  must  look  for  aid  elsewhere;  that  this  is  pos- 
sible, and  how  it  is  so,  Lewin's  book  has  shown.  In  respect 
to  the  principal  crimes,  however,  especially  theft  and  assault 
and  battery,  the  statistics  are  an  inexhaustible  resource,  giving 
us  new  and  valuable  results  on  every  fresh  examination. 

A  further  difficulty,  to  which  von  Liszt  ^  particularly  calls 
attention,  is  this,  that  the  criminal  statistics  deal  with  the 
technical  juristic  conceptions  of  crimes  used  in  the  criminal 
code,  which  do  not  coincide  with  the  psychologically  efiFectiv^e 
motives  of  the  act.  The  Penal  Code  formulates  its  conceptions 
of  crimes  according  to  the  interests  injured  or  menaced  by 
the  act,  and  from  this  point  of  view  divides  the  crimes  into 
groups.  In  criminal  statistics  which  are  intended  to  show 
the  causes  of  crime,  another  method  of  grouping  is  necessary. 
A  few  examples  will  show  this  more  clearly.  During  the  years 
1892-1895  there  was  a  considerable  decrease  in  the  number  of 
thefts,  simple  thefts  (not  repeated)  diminishing  from  107,904 
to  86,656,  more  serious  cases  from  12,228  to  10,235;  thus  the 
decrease  amounted  to  17%  and  20%.  Another  crime  which, 
with  theft,  is  reckoned  among  the  crimes  and  oflFenses  against 
property,  increased  by  15%,  namely,  malicious  mischief. 
Now,  if  we  look  further  for  crimes  which  show  a  similar 
increase,  we  come  across  the  convictions  for  insult  and 
assault  and  battery.  These  "crimes  against  the  person" 
increased  in  the  same  period  by  18%  and  21%.  This  differ- 
ence between  the  course  of  theft  and  the  course  of  malicious 
mischief,  which  is  noticeable  at  all  times,  is  so  striking 
that  certain  reasons  must  exist  for  it.  They  appear  at  once 
when  we  compare  the  psychological  processes  involved  in 
both  crimes.  Theft  is  usually  carried  out  with  deliberation 
^  von  Liszt,  loc.  cit.  p.  474. 


§  1]  TASKS  AND  METHODS  11 

and  premeditation,  as  quietly  and  secretly  as  possible,  most 
often  at  night;  malicious  mischief  is  seldom  done  deceitfully; 
as  a  rule  it  is  inflicted  in  a  rough,  brutal  way,  loudly,  openly, 
frequently  as  the  result  of  alcoholic  excesses.  This  explains 
the  similarity  between  it  and  the  figures  for  assault  and  bat- 
tery and  insults,  which  usually  spring  from  the  same  cause. 
Thus,  psychologically,  malicious  mischief  should  be  grouped 
with  assault  and  battery,  not  with  thefts. 

A  further  example  is  found  among  the  sexual  crimes,  which 
include  inducing  women  to  prostitution,  as  well  as  rape. 
Now  the  former  is  always  based  on  the  lowest  kind  of  avarice. 
It  is  an  act  always  carried  out  with  deliberation,  more  often 
by  women  than  men,  and  in  many  cases  by  persons  who  are 
long  past  the  age  of  sexual  attraction.  Rape,  however,  arises 
from  the  brutal  and  uncontrolled  sexual  excitement  of  the 
moment;  it  can,  of  course,  only  be  committed  by  men.  Many 
cases  of  insult  ("Beleidigung,"  §  185)  would  have  to  be  char- 
acterized psychologically  as  sexual  crimes.^ 

Crimes  that  differ  so  widely  psychologically  should  not  be 
classified  in  one  group,  if  criminal  psychological  knowledge  is 
not  to  be  always  in  danger  of  being  led  astray.  The  Imperial 
criminal  statistics  distinguish  between  four  groups :  crimes  and 
misdemeanors,  1,  against  the  State,  public  order,  and  religion; 
2,  against  the  person;  3,  against  property;  4,  crimes  and 
misdemeanors  in  oflBce  ("im  Amte").  Seuffert  ^  is  right  in 
emphasizing  that  only  the  last  group  is  of  value  for  the  com- 
prehension of  criminality. 

It  cannot  fail  to  be  recognized  that  statistics  still  leave  much 
to  be  desired;  for  improvement  in  which  we  cannot  hope  till 
the  needs  of  a  practical  criminal  psychology  shall  have  been 
more  exactly  determined.    But  the  foregoing  makes  clear  our 

^  Aschaffenburg,  "Zur  Psychologic  der  Sittlichkeitsverbrechcr"  (MSchr- 
KrimPsych.  II,  400).  »  Seuffert.  loc.  cU.  p.  23. 


12  INTRODUCTION  [§  1 

second  difficulty,  that  of  using  the  facts  estabhshed  by  crimi- 
nal statistics.  We  see  in  the  figures  crimes  expressed  only  in 
the  terms  of  the  criminal  law.  Hence,  we  must  be  cautious 
about  drawing  far-reaching  conclusions  from  them.  An  old  and 
proven  principle  of  medical  science  teaches  us  to  beware,  in  all 
examinations,  of  confusing  the  post  hoc  "  with  the  propter 
hoc."  Only,  for  instance,  if  we  see  the  same  symptoms  appear 
repeatedly  after  the  application  of  a  remedy  are  we  justified 
in  bringing  the  medicine  into  causal  connection  with  the  result. 
Hence,  the  same  principle  applied  to  criminal  statistics  also 
demands  that  we  should  infer  an  inner  connection,  only  if 
we  repeatedly  find  the  same  relations  between  external  cir- 
cumstances and  an  act  that  we  are  inclined  to  believe  is  caused 
by  these  circumstances.  Whether  these  causes  are  sufficient 
to  explain  the  occurrence  of  the  crime,  should  be  made  the 
subject  of  the  most  mature  consideration.  Repeated  exam- 
ination and  careful  criticism  will  prevent  our  accepting  false 
causes,  will  guard  us  from  simple  errors;  from  advancing  false 
assertions  in  which  the  wish  is  father  to  the  thought  —  and 
these  are  not  so  very  rare  —  our  scientific  honesty  must  pro- 
tect us. 

Only  the  most  careful  restraint  can  prevent  our  confusing 
apparent  with  true  causes.  If,  for  instance,  we  find  that  the 
love  of  pleasure  has  an  unfavorable  influence  on  criminality, 
it  would  be  incorrect  to  make  love  of  pleasure  responsible  for 
an  increase  in  crimes,  especially  those  against  the  person. 
It  is  only  the  apparent,  outward  cause;  the  true  one  is  the 
alcohol  consumed  at  places  of  amusement  and  on  festive 
occasions.  The  difficulty  of  interpretation  makes  only  slow 
and  cautious  progress  possible.  We  must  never  forget  that 
the  criminal  statistics  give  only  the  naked  figures;  that  they 
take  no  account  of  minor  offenses,  and  can,  therefore,  give  no 
exhaustive  picture  of  the  criminal  world. 


§1]  TASKS  AND  METHODS  13 

Nevertheless,  it  is  worth  while  to  try  to  summarize  what 
these  figures  can  teach  us,  to  try  to  breathe  life  into  the  dry 
numbers.  Though  some  paths  may  be  trodden  in  vain,  and 
some  may  prove  to  be  blind,  yet  the  trouble  taken  is  rewarded 
by  the  new  points  of  view  obtained,  from  which  another  may 
see  the  goal  more  clearly  and  seek  to  reach  it  with  perhaps 
greater  success. 


Part  I 

THE  SOCIAL  CAUSES  OF  CRIME 

§  2.  Classification 

In  view  of  the  prevailing  uncertainty  as  to  whether  we  are 
justified  in  bringing  a  criminal  act  into  causal  connection  with 
the  accompanying  conditions,  the  outcome  of  any  attempt  to 
group  the  causes  is  dubious  from  the  beginning.  Nevertheless, 
I  have  divided  them  into  two  large  groups:  social  causes,  and 
individual  causes.  This  division,  however,  is  not  intended 
to  anticipate  the  discussion  of  the  causes,  nor  to  assign  to 
those  dealt  with  their  ultimate  place,  but  merely  to  arrange 
them  in  a  scheme  for  discussion.  We  shall  soon  see  that  the 
first  group  concerns  only  external  conditions  the  general 
fluctuations  of  which  influence  the  commission  of  a  crime;  the 
second  group  will  always  lead  us,  in  the  examination  of  the 
individual's  personal  inclination  to  crime,  back  to  the  soil 
from  which  the  individual  springs,  and  thus  direct  us  back 
along  the  way  to  the  social  causes.  For  the  soil  in  which 
crime  generates  von  Mayr  has  coined  the  term  "external 
impressional  influences,"  for  the  individual  disposition, 
"personal  impulsional  influences."  The  latter  term  in 
particular  contains  a  certain  judgment  of  the  individual 
factor  which  seems  to  me  to  go  too  far.  For  we  shall  see 
that  in  most  criminals  there  is  no  inner  impetus  towards 
crime,  but  merely  the  inability  to  withstand  the  pressure 
of  external  driving  forces.  Hence  it  seems  to  me  that  the 
old  terms  correspond  best  to  the  real  conditions.  To  what 
extent  the  two  groups  of  causes  cover  each  other,  and  how 


iO 


THE  SOCL\L  CAUSES  OF  CRIME 


[§3 


often  a  careful  examination  makes  it  necessary  to  change  the 
gToaping,  will  appear  later. 


^  3.  Crime  and 

Some  crimes  show  a  striking  dependence  on  the  season. 
DilJerences  in  their  frequency  in  summer  and  in  winter  are 
noticeable  in  aU  countries;  hence,  it  is  not  surprising  that 
this  phenomoion  has  long  been  the  subject  of  special  atten- 
tion.   Yet,  in  spite  of  this  lively  interest,  we  are  still  rather 

TABLE   I 

Sexual  Ckdcbb  rs  Rzlatton  to  Seasox  ts  PaA3scK.     18S7-1M9 

ATteT  Ferri.  perrenta«res  reckon«l  by  the  author.' 


fur  JO. 

Ckoces  rs 

Fmjjcx.  ISiT-i^t- 

DiT»  or  C 

•OUWJ*. 

»-l871 

Uamrm 

0»  AiMTLrs 

Amaum 

VaBOtXTE 

C~_ 

1  =,- 

Ncnas 

NrVBBM 

T,,,,,  J 

5&4 

7.09 

1.106 

5-57 

i.«3 

7.84 

Vthnmry 

563 

6>4 

1.041 

5.24 

2.661 

8.02 

Marek    . 

MS 

T.Si 

1J6« 

tJ» 

MIK 

7M 

Aprfl  .    . 

008 

739 

1,700 

S^ 

1387 

SM 

M«T    .     . 

904 

10  9S 

il75 

10.95 

3,060 

9.11 

Jtsk   .    . 

1.043 

12.67 

£.585 

13.03 

3.018 

9.08 

J^r  -  . 

800 

10.45 

2.459 

12^42 

2.911 

8.7t 

7W 

9.54 

2.208 

11.13  , 

2.742 

8.25 

n^  iMii  ll^^|' ' 

653 

7.93 

1.773 

8.9S 

2.810 

8.46 

October 

5Si 

6.46 

1.447 

7Mi 

2.«£5 

7.91 

NbvcBber 

514 

6.i4 

983 

4.95 

tjtto 

739 

DtB^BDer 

534 

6.49 

939 

5.0S  ' 

2.665 

8.02 

Unknovn 

1.4^1 

16,160 

at  a  loss  as  regards  the  deepest  causes  of  these  fluctuations 

and  are  scarcely  able  to  get  beyond  surmises.    This,  however, 

does  not  detract  from  the  importance  of  the  facts  themselves. 

Table  I.  after  Fern,-  shows  how  sexual  crimes  in  France  were 

I  Instead  of  the  irrderuit  days  of  birth. 

-  Ffrri,  ^Das  Veiiwechen  in  seiner  Ahkb^^at  yom  dea  jlfcrfcrhf 
Ttii^malwirediad"  (ZStW.  EL  38). 


§3] 


CRIME  AND  SEASON 


17 


distributed  over  the  different  months  during  the  years  1827- 
1869.  The  commission  of  these  offenses  becomes  more  fre- 
quent from  March  on.  The  increase  is  rapid  until  the  maxi- 
mum is  reached  in  June,  after  which  it  decreases  just  as 
rapidly,  and  from  October  to  February  remains  at  approxi- 

T-^BLE  n 

The  CEncsALiTT  or  Gehmjl>"t  accoeding  to  the  Yeab  jlstd  Mosth  whkv 
THE  Chimes  *T;y.  committed 

("Statistics  of  the  German  Empire,"  N.  F.  LXXXIII,  H,  p.  52.) 
If  there  are  100  offenses  per  day  in  the  year,  there  are  per  day  in  the  mooth: 


Knn)  OT  Chuoes  uro  Ofteksbs 


-^      -^      < 


C    I  Z 


Crimes  and  oSeaaes  against 
national  laws 

Resisting  officer 

Breach  of  the  peace     .    .    . 

Rape 

Obscene  acts,  distribution  of 
obscene  literatme     .    .    . 

Insult  ("Beleidigung")    .    . 

Infanticide 

Simple  assault  and  battery  . 

Aggravated  assault  and  bat- 
tery      

Crimes  against  property  .    . 

Petit  larceny,  also  when 
repeated 

Grand  larceny,  also  when 
repeated 

Embezzlement 

Fraud,  also  when  repeated  . 

Malicious  mischief    .... 


95  97  90  92  99103105109105  103103  98 

89  94  89  94  97  104  109 117  112  104  99  90 

94  99  96  100  98  101  105  110  106  102  1001  89 

64i  66  78103128144149130108,  90  68  69 

I   !   :   '  ■       '       \ 

62  74  83  101130150141133  109  84  69  64 

83  89  85  9S  108 115  120 122  113  99  93  SO 

89 127 127  121  lis  102  95  SO  91  86  82  87 

76  80,  79  95  108116124134121102  88  74 


I  751  TO]  TO 
109108  96 


113115    98 


951081131181331241106   93 
90   93   93   92   93   93|104 


85   87   88   88   92   92:106117 


TO 


113117 


121 


102  107  92  89  94  98  98  94  96  106112111 

100  97  94  94  98  100103  101  98  104  105 108 

112  lOS  95  88  92  92  92  93  90  88102121 

SS  92  9S  lOS  109  106  104  104  103  101  99  SS 


mately  the  same  low  point.  These  differences  between  the 
months  are  much  more  clearly  marked  where  the  objects 
of  the  crimes  are  children,  the  month  of  June  exceeding  the 
winter  months  by  more  than  130*^. 

The  statistical  card-records  of  convicted  criminals  in  Ger- 


18 


THE  SOCIAL  CAUSES  OF  CRIME 


[§3 


PLATE  I 

Crime  and  Season  in  Germany  (1883-1892) 
("Statistics  of  the  German  Empire,"  N.  F.  LXXXIII,  II,  pp.  52,  53.) 


160% 


Sexual  crimes. 

Obscene  acts. 

Simple  assault  and  battery. 

Aggravated  assault  and  battery. 

Insult. 


150% 

l40°/4 

i 

/> 

<x 

I307o 

// 

/ 

> 

\ 

120% 

^ 

110% 

V 

^ 

f 

\ 

^ 

\ 

100% 

1^ 

\ 

\N 

90% 

IS 

> 

^ 

\ 

80% 

^ 

^^^ 

\ 

\. 

^ 

7D% 

1>^ 

7 

\ 

V 

W 
\ 

60% 

/ 

// 

V 

C 

50% 

40% 

30% 

20% 

10% 

0% 

Jan. 

Feb. 

March 

k^xW 

May 

June 

July 

Aug. 

Sept. 

Oct. 

Nov. 

Dec 

§3] 


CRIME  AND  SEASON 


19 


many  also  contain  a  column:  "Time  when  the  deed  was  com- 
mitted." The  results  of  these  records,  which  have  been  kept 
for  years,  are  presented  in  the  criminal  statistics  for  1894.^ 
The  calculation  is  based  on  the  period  from  1883  to  1892;  its 
value  is  considerably  increased  by  the  fact  that  the  inequali- 
ties in  the  length  of  the  months  have  been  corrected  by  exact 
calculation.  Consequently,  the  figures  given  in  Table  II  can 
be  compared  without  alteration. 


TABLE  III 

Distributions  op  the  Conceptions  in  the  Difperent  Months  in  Germany 

(1872-1883) 

(Statistical  Year-Book  for  the  German  Empire,"  1885,  p.  21.) 

If  the  average  number  of  cases  per  day  in  the  year  is  100,  the  number  per 
dav  in  the  different  months  is: 


Months 


Births  including 
Stillbibths 


January    . 

February 
March  .  . 
April  .  . 
May  .  . 
June  .  . 
July  .  .  . 
August 
September 
October  . 
November 
December 


100 

99 

99 

103 

106 

104 

100 

97 

95 

95 

98 

105 


The  increase  in  sexual  crimes  begins  in  Germany  in  March, 
just  as  it  does  in  France;  the  maximum  is  reached  in  July, 
after  which  the  number  quickly  decreases;  a  very  similar 
curve  is  shown  by  "obscene  acts,"  except  that  in  this  case  the 
maximum  is  reached  in  June.  The  fluctuations  are  tremen- 
dous.   July  exceeds  the  winter  months  by  more  than  double 

^  "  Statistik  des  Deutschen  Reiches,"  N.  F.  LXXXIII. 


20  THE  SOCIAL  CAUSES  OF  CRIME  [§  3 

the  number  of  sexual  crimes.    This  is  strikingly  shown  on  the 
preceding  plate  (I). 

We  come  now  to  the  question:  What  is  the  significance  of 
this  phenomenon,  which  may  be  observed  in  the  same  way 
in  all  other  countries  as  well?  As  long  ago  as  in  1831,  Vil- 
lerme  ^  pointed  out  that  the  births  are  by  no  means  equally 
distributed  over  the  different  months;  that,  on  the  contrary, 
they  show  perfectly  regular  fluctuations  in  frequency.  The 
births  are,  of  course,  a  matter  of  indifference  to  us,  but  of 
greater  importance  is  the  psychological  significance  of  the  time 
of  conception.  As  Table  I,  taken  from  Ferri's  work,  shows,  the 
increase  of  the  conceptions  in  May  and  June  in  France  is 
unmistakable,  although  the  differences  of  the  single  months 
among  themselves  are  not  very  great. ^ 

In  Germany  the  differences  in  the  months  of  conception  are 
quite  independent  of  the  marriages;  Lent  and  the  harvest 
season  cause  the  latter  to  be  postponed  to  more  convenient 
times,  so  that  the  curve  of  the  marriages  shows  two  deep 
incisions.  The  variation  in  the  number  of  births  in  the  differ- 
ent months  is  not,  at  first  sight,  very  great;  the  days  of  con- 
ception culminate  at  two  points,  one  in  December  (the  holiday 
season),  the  other,  the  highest,  in  May.  This  month  exceeds 
the  lowest  one,  September,  in  ten  years,  by  142,000  births; 
this  is  a  proof  of  how  significant  in  the  course  of  longer  periods 
the  variation  in  the  different  months  becomes. 

But  a  matter  of  special  interest  is  the  relation  of  the 
legitimate  to  the  illegitimate  births.    The  number  of  illegiti- 

1  VillermS,  "De  la  distribution  par  mois  des  conceptions  et  des  naissances 
de  rhomme"  (Annales  d'hygi^ne  publique  et  de  medecine  legale,  1831,  p.  55). 

*  The  preponderance  of  the  conceptions  from  April  to  June  is  most  clearly 
shown  in  the  Swiss  statistics  for  the  years  1871-1890.  {Bezzola,  "  Statistische 
Untersuchungen  tiber  die  Rolle  des  Alkohols  bei  der  Entstehung  des  originaren 
Schwachsinnes,"  Intemat.  Monatsschr.  z.  Bekampfimg  der  Trinksitten,  XI, 
180). 


§  3]  CRIME  AND  SEASON  21 

mate  conceptions  rises  rapidly  from  March  on,  reaches  its 
maximum  in  May,  as  does  the  number  of  legitimate  concep- 
tions, and  then  sinks  again  rapidly.  From  September  on,  it 
remains,  apart  from  a  slight  rise  in  December,  till  February, 
below  the  average.  Thus  we  see  that  the  differences  in  the  days 
of  conception  among  the  unmarried  are  much  more  marked. 

The  comparison  of  these  dates  shows  the  influence  of  the 
season  in  the  whole  sphere  of  sexual  intercourse.  It  is  less 
pronounced  in  the  legitimate  conceptions,  but  remarkable 
enough,  because  of  the  size  of  the  numbers  under  consideration. 
This  phenomenon  is  more  noticeable  in  the  illegitimate  con- 
ceptions, and  much  more  striking  in  the  offenses  against  chas- 
tity, and  is  most  marked  among  these  again  in  those  crimes 
that  are  most  atrocious,  namely,  those  the  objects  of  which  are 
defenseless  and  immature  children.  From  these  facts  we 
must  draw  the  conclusion  that  some  connection  exists  between 
sexual  excitability  and  the  season  of  the  year.  The  fact  that 
this  influence  on  sexual  life,  of  which  we  are  usually  entirely 
unconscious,  also  appears  in  the  sphere  of  normal  and  legiti- 
mate sexual  intercourse,  and  that  this  dependence  on  the 
season  is  the  more  striking,  the  more  reprehensible  is  the 
manner  in  which  the  sexual  instinct  is  gratified,  requires  an 
explanation. 

Other  social  phenomena  also  show  regular  fluctuations  in 
frequency,  above  all  suicide,  the  curve  indicating  which  takes 
precisely  the  same  course  as  that  of  sexual  crimes.  In  the 
winter  months,  at  a  time,  that  is,  when  economic  necessity 
pushes  many  a  man  to  the  verge  of  despair,  relatively  few  peo- 
ple die  by  their  own  hand;  the  highest  point  in  the  tendency 
to  commit  suicide  occurs  in  June,  in  some  countries  in  May.^ 

'  von  Mayr,  "Der  Selbstmord"  (Allg.  statistisches  Archiv,  1896,  p.  722); 
Soquet,  "  Abhangigkeit  der  Selbstmorde  von  der  Wittenmg  in  Frankreich  von 
1827-1880"  (Annales  medico-psycholog.,  1890,  p.  41). 


22 


THE  SOCIAL  CAUSES  OF  CRIME 


[§3 


Moreover,  this  regularity  —  a  rapid  rise  of  the  curve  in  spring 
and  as  rapid  a  sinking  in  midsummer  —  is  found,  not  in  Ger- 
many alone,  but  also,  without  exception,  in  all  other  European 
countries. 

TABLE  IV 

Suicide  and  Temperature 

(After  Durkheim:  "Le  Suicide,"  p.  93.) 


Fbance 
1866-1879 

Italy 
1883-1888 

Pbussia 
1876-1878,  1880- 
1882,  1885-1889 

MobthbI 

Medium 
Tempeb- 

Suicides 
Monthly 
TO  1000 

Medium 
Tempebatube 

Suicides 

MONTHLY 

TO  1000 

Annual 
Suicides 

Medium 
Xempeb- 

ATUBE 

Suicides 

MONTHLY 

TO  1000 

ATUBE 

Annual 
Suicides 

Rome 

Naples 

1848-1877 

Annual 
Suicides 

January  .    . 

2.4° 

68 

6.8° 

8.4° 

69 

0.28° 

61 

February     . 

4.0° 

80 

8.2° 

9.3° 

80 

0.73° 

67 

March      .    . 

6.4° 

86 

10.4° 

10.7° 

81 

2.74° 

78 

April    .    .    . 

10.1° 

102 

13.5° 

14.0° 

98 

6.79° 

99 

May     .    .    . 

14.2° 

105 

18.0° 

17.9° 

103 

10.47° 

104 

June     .    .    . 

17.0° 

107 

21.9° 

21.5° 

105 

14.05° 

105 

July      ... 

18.9° 

100 

24.9° 

24.3° 

102 

15.22° 

99 

August     .    . 

18.5° 

82 

24.3° 

24.2° 

93 

14.60° 

90 

September  . 

15.7° 

74 

21.2° 

21.5° 

73 

11.60° 

83 

October   .    . 

11.3° 

70 

16.3° 

17.1° 

65 

7.79° 

78 

November   . 

6.5° 

66 

10.9° 

12.2° 

63 

2.93° 

70 

December    . 

3.7° 

61 

7.9° 

9.5° 

61 

0.60° 

61 

Morselli  ^  seeks  the  explanation  in  the  temperature.  A 
comparison  between  the  temperature  curve  and  the  number 
of  suicides  does,  indeed,  show  a  remarkable  parallelism  until 
June;  but,  from  then  on,  the  suicides  rapidly  decrease,  whereas 
the  heat  of  summer  grows  greater.  During  the  heat  of  August 
there  are  considerably  fewer  suicides  than  in  the  cool  month 
of  April.  Hence  the  temperature  in  itself  cannot,  or  at  least, 
cannot  alone,  produce  the  remarkable  phenomenon.  Yet  I 
do  not  agree  with  Durkheim,^  who  excludes  the  cosmic  influ- 

1  All  months  reckoned  as  having  thirty  days. 

*  Morselli,  "Der  Selbstmord,"  p.  93. 

^  Durkheim,  "Le  suicide,"  Paris,  Felix  Alcan,  1897,  p.  82. 


§3]  CRIME  AND  SEASON  23 

ence  altogether.  After  all,  it  is  still  possible  that  the  increase 
in  external  warmth  does  at  first  exert  an  exciting  influence  on 
man,  which  is  followed,  when  the  heat  is  long  continued  or 
increases,  by  a  reaction. 

Another  explanation  is  much  more  seductive,  that  is,  that 
the  number  of  suicides  is  connected  with  the  length  of  the 
days,  with  the  number  of  hours  of  light. ^  The  length  of  the 
days  and  the  frequency  of  suicides  in  the  different  months  do, 
indeed,  entirely  agree  with  each  other.  Nevertheless,  the 
explanation  seems  to  me  untenable,  because  most  suicides 
are  not  committed  in  the  daytime,  but  early  in  the  morning 
or  at  night.  In  addition,  it  is  difficult  to  find  in  light  a  psycho- 
logical motive  for  putting  an  end  to  life. 

Drowning  is  not  a  very  common  mode  of  suicide;  in  Prussia, 
for  instance,  in  1893,  of  6409  suicides,  only  1145  (=  18%)  put 
an  end  to  their  lives  in  this  way.  Hence  the  relative  infre- 
quency  of  suicides  in  winter  cannot  be  dependent  on  the  mere 
mechanical  difficulty  of  this  manner  of  death,  as  has  already 
been  suggested.  This  supposition  entirely  fails  to  account 
for  the  rapid  decrease  from  the  middle  of  the  year,  and  for 
the  fact  that  there  is  the  same  distribution  of  suicides  in  coun- 
tries where  the  rivers  and  lakes  do  not  freeze. 

All  explanations  of  the  frequency  of  suicide  in  summer  that 
are  based  on  external  influences  are  unsatisfactory.  We  must 
be  content  with  the  fact  as  such.  It  is  important  enough, 
clearly  showing,  as  it  does,  the  existence  of  periodic  fluctua- 
tions of  the  psychic  balance.  At  a  time  when  the  external 
conditions  of  life  afford  comparative  security  against  want  and 
misery,  such  far-reaching  and  deeply  felt  factors  affect  man 
and  weaken  his  power  of  resistance  that  he  resorts  to  suicide. 
In  the  absence  of  any  other  comprehensible  cause  for  this, 

1  Chaussinand,  "fitude  medico-legale  sur  la  statistique  criminelle  en 
France,"  Lyon,  1881. 


24  THE  SOCIAL  CAUSES  OF  CRIME  [§  3 

there  remains  only  the  explanation  that  our  organism  is 
subject  to  acute  periodic  changes. 

These  periodic  fluctuations  are  well  known  to  us  in  the  sphere 
of  sexual  life.  The  sexual  instinct  makes  itself  felt  in  animals 
at  certain  definite  times  only.  The  more  animals  have  become 
accustomed  to  men,  have  been  domesticated,  the  less  sharply 
defined  is  this  periodic  sexual  excitement,  which  among  wild 
animals  leads  to  desperate  struggles  for  the  possession  of  the 
female. 

To  superficial  observation  sexual  excitability  in  man  is  not 
subject  to  fluctuation.  But  Havelock  Ellis  ^  has  recently  en- 
deavored to  show  that  menstruation  in  women  is  analogous 
to  the  period  when  animals  are  in  heat,  and  also  that  even 
men  are  not  entirely  free  from  a  regular  periodicity  of  sexual 
functions. 

Enticing  as  is  the  hypothesis  that  the  sexual  life  of  men  is 
also  subject  to  periodic  fluctuations,  it  still  requires  further 
examination  and  proof.  Far  more  justifiable  is  the  assumption 
that  menstruation  is  an  abortive  expression  of  sexual  excite- 
ment and  that  it  still  proves  today  to  how  great  an  extent  in 
the  realm  of  sexual  functions  periodicity  is  preserved.  This 
is  also  shown  by  experience  with  some  insane  persons;  during 
menstruation,  also  often  at  the  time  when  it  is  expected  but 
does  not  occur,  irritabiUty  in  general,  and  sexual  excitability 
in  particular,  increase. 

The  establishment  of  physiological  wave-movements  in  the 
life  of  women  ^  surely  permits  us  to  assume  a  similar  cause  for 
the  proved  fluctuations  in  psychic  balance  which  we  found  in 

'  Havelock  Ellis,  "  Geschlechtstrieb  und  Schamgefuhl."  2d  ed.,  Wiirz- 
burg,  R.  Stubers  Verlag,  1901. 

^  AugtLst  Hegar,  "Zur  Frage  der  sogenannten  Menstruationspsychosen " 
(Allg.  Zeitschrift  f.  Psych..  LVIII,  357) ;  and  R.  Wallenberg,  "Die  forensisch- 
psychlatrische  Bedeutung  des  Menstruationsvorganges"  (MSchrKrimPsych., 
II,  36). 


§3]  CRIME  AND  SEASON  25 

the  suicides,  and  for  the  increase  in  sexual  excitement  shown 
by  the  multipHed  conceptions  and  offenses  against  chastity 
that  occur  in  the  spring.  Accordingly,  we  may  express  the 
surmise  that  the  decrease  and  increase  of  the  sexual  instinct, 
which  embrace  all  the  modes  of  sexual  gratification,  from  con- 
jugal sexual  intercourse  to  brutal  attacks  on  children,  corre- 
spond, though  in  a  much  weaker  and  altered  form,  to  "heat" 
in  animals. 

For  the  commission  of  sexual  crimes  this  view  is  of  so  much 
more  importance,  because  all  other  explanations  are  inade- 
quate. The  simplest  explanation  of  the  phenomenon,  and 
the  one  that  first  suggests  itself,  is,  that  the  season  multiplies 
the  opportunity.  For  this  reason  Gross  ^  flatly  rejects  my 
view.  "In  summer  people  spend  much  more  time  outdoors, 
individuals  are  found  alone  much  oftener  than  in  winter, 
when  in  their  houses;  work  in  the  fields,  walks  and  other  out- 
door activities,  offer  numerous  occasions  for  two  persons  to 
be  alone,  and  interruptions  are  much  less  to  be  feared.  Cries 
for  help  (rape)  are  much  less  effectual  outdoors  than  in  the 
house."  It  must  be  admitted  that  this  is  true.  But  even 
taking  into  consideration  the  excessive  drinking  that  goes  on 
in  summer  and  the  increased  external  warmth,  all  these  co- 
effective  and  favorable  causes  still  leave  the  question  unan- 
swered, why  the  number  of  crimes  decreases  so  rapidly  in 
August  and  September  although  at  that  time  the  external 
conditions  would  rather  facilitate  the  commission  of  offenses. 
Gross  adds  further,  in  refutation:  "Any  expert  could  confirm 
the  statement  that  an  incomparably  greater  number  of  sexual 
crimes  are  committed  outdoors  than  in  the  house."  In  1903, 
of  10,226  punishable  acts  against  §§  176-179  (rape  and  as- 
saults on  children),  8856  (=  87%)  were  against  §  176.  Thus 
we  see  that  this  crime  determines  in  the  main  the  annual 
»  Hans  Gross,  "Arch-  Krim.  Anthr.,"  XII,  370. 


26  THE  SOCL\L  CAUSES  OF  CRIME  [§  3 

curve.  Of  106  persons  who  were  convicted  in  accordance  with 
§  176/  62  had  made  their  attacks  on  children  in  the  house, 
35  outdoors,  and  9  both  indoors  and  out.  There  were  173 
separate  acts  committed  indoors,  as  against  54  outdoors. 
Hence  we  see  that  the  multipHcation  of  opportunity  does  not 
weigh  as  heavily  as  one  would  suppose  at  the  first  glance. 
There  remains  scarcely  another  supposition  than  the  one 
discussed. 

The  psychological  application  of  the  fact  itself  is  of  course 
independent  of  the  attempted  explanation.  Whether  the 
latter  be  right  or  not  —  we  are  all  subject  to  an  unusual  in- 
crease in  sexual  excitability  in  the  spring  without  being  con- 
scious of  it.  With  the  realization  of  this  fact,  we  gain  an 
insight  into  motives  which,  unlike  intelligence  or  proved 
brutality,  and  general  criminal  tendency,  are  not  recognizable 
in  the  individual  act. 

Infanticide,  the  murder  of  the  illegitimate  child  during  or 
directly  after  its  birth  (§  217,  Penal  Code),  is  most  fre- 
quent in  the  months  of  February  and  March.  There  are  127 
cases  in  each  of  these  months  —  a  number  approached  only 
in  April  and  May  —  as  against  80  to  95  in  the  period  from 
July  to  January.  Births  in  February,  March,  and  April  cor- 
respond to  the  conceptions  in  May,  June,  and  July.  Here 
too,  then,  the  increase  in  sexual  excitement  is  indirectly  felt. 
It  is  interesting  to  find  that  the  desire  to  get  rid  of  the  un- 
wished-for  child  is  apparently  much  more  closely  connected 
with  the  number  of  births  in  the  month  than  with  the  thought 
of  how  the  child  is  to  be  provided  for. 

A  reason  advanced  in  favor  of  a  milder  sentence  for  infanti- 
cide was  based  on  the  assumption  of  a  desperate  frame  of  mind, 
a  mixture  of  helplessness,  shame,  remorse,  pain,  and  worry 

1  Asckaffenburg,  "Zur  Psychologic  der  Sittlichkeitsverbrecher"  (MSchr- 
KrimPsych.,  II.  399). 


§3]  CRIME  AND  SEASON  27 

about  the  future.  The  figures  of  the  statistics  show  that  the 
immediate  care,  at  least,  has  no  great  influence;  otherwise, 
in  the  times  of  need,  that  is,  in  the  winter  months,  in  which, 
in  addition  to  all  else,  there  is  frequently  loss  of  employment, 
there  would  be  a  greater  proportion  of  infanticides.  Instead 
of  this,  the  number  stands  in  the  most  direct  relation  to  the 
number  of  births,  so  that  one  is  almost  tempted  to  say: 
among  the  same  number  of  mothers  of  illegitimate  children 
there  is  always  approximately  the  same  number  who  forcibly 
rid  themselves  of  their  children. 

A  number  of  other  offenses  show  a  curve  similar  to  that  of 
the  sexual  crimes:  simple  assault  and  battery  (134),  aggravated 
assault  and  battery  (133),  coercion  and  threats  (132),  in- 
sult (122),  resisting  officers  (117),  breach  of  the  peace  (110). 
All  exceed  the  monthly  average  of  100,  some  of  them  con- 
siderably, as  the  figures  in  parentheses  show.  The  curve 
rises  steadily  till  the  highest  point  is  reached,  in  August, 
then  follows  a  rapid  descent,  and  the  minimum  is  touched  in 
December  or  January.  The  months  from  November  till 
April  are,  without  exception,  below  the  average.  The  simi- 
larity of  all  these  curves  (compare  Plate  I),  which  follow  the 
course  of  the  curve  indicating  sexual  crimes,  though  about 
two  months  later,  is  so  striking  that  we  are  compelled  to  as- 
sume that  the  same  causes  underlie  them  all,  though  the  legal 
classification  of  these  crimes  is  quite  different,  owing  to  the 
multifariousness  of  the  legal  rights  that  are  infringed.  The 
manner  of  commission,  brutal  violence  and  revolt  against 
authority,  is  common  to  them  all. 

Their  course  follows  that  of  the  mean  temperature.  Hence 
it  would  be  daring  to  exclude  altogether  the  influence  of  ex- 
ternal warmth  as  a  cause  of  the  movements  of  these  crimes; 
but  I  am  more  inclined  to  believe  in  the  indirect  effect  of  the 
rise   in   temperature.      In   summer   it  facilitates   intercourse 


28  THE  SOCIAL  CAUSES  OF  CRIME  [§  3 

with  the  outside  world,  increases  and  enlarges  the  points  of 
social  contact.  The  danger  of  conflicts  is  thus  also  augmented. 
Incomes  are  increased,  expenses  reduced,  and  opportunities 
to  spend  money  in  summer  are  not  lacking.  The  presentation 
of  a  new  flag,  the  opening  of  a  new  club-house,  the  unveiling 
of  a  monument,  the  anniversary  of  a  foundation,  birthdays 
and  family  anniversaries,  harvest  and  church  festivals,  and 
other  occasions  are  celebrated.  Each  of  these  means  alcohoHc 
excesses,  a  danger  that,  in  any  case,  the  summer  heat  entails. 
The  part  that  drinking  plays  precisely  in  the  above-mentioned 
crimes  will  have  to  be  fully  dealt  with  later.  It  must  suffice 
here  to  point  out  the  connection  between  the  increase  in  brutal 
crimes  and  summer  festivities. 

Offenses  against  property  present  an  entirely  different  as- 
pect, malicious  mischief  alone  forming  an  exception.  The 
latter  in  its  origin  is  related  to  assault  and  battery,  and 
its  course  is  consequently  similar  to  the  latter,  although  the 
differences  between  summer  and  winter  are  somewhat  less 
pronounced.  Theft  and  fraud,  on  the  contrary,  never  reach 
the  daily  average  of  100  from  March  to  September.  But, 
from  then  on,  there  is  a  rapid  increase  in  their  frequency, 
which  continues  through  the  whole  winter  (Plate  II).  The 
explanation  of  this  phenomenon  is  much  less  difficult  to  find 
than  in  the  case  of  the  sexual  crimes. 

With  the  coming  of  spring  the  opportunity  for  employment 
increases,  and  the  expenses  of  heat,  light,  and  warm  clothing 
are  reduced,  indeed,  some  of  them  cease  entirely.  In  fact, 
it  is  possible  temporarily  to  dispense  with  the  shelter  that  is 
absolutely  essential  in  winter.  The  pressure  of  the  cold 
months  is  relieved.  Those  who  do  not  want  to  work,  and 
among  them  are  many  who  in  winter  would  encroach  upon 
others'  property,  can  manage  to  exist  as  tramps  on  the  country 
roads  and  thus  disappear,  if  not  from  the  criminal  courts. 


§3] 


CRIME  AND  SEASON 


29 


PLATE  n 


Chime  AND  Season  in  Germany.     1883-1892. 
("Statistics  of  the  German  Empire,"  N.  F.  LXXXIII,  II,  pp.  82,  83.) 


160% 


Larceny  (also  when  repeated).     §§  242,  244. 
Grand  larceny  (also  when  repeated).     §§  243,  244. 
Fraud  (also  when  repeated).     §§  263-265. 


ISOVo 

140% 

!30% 

1Z0% 

-o- 

1 10% 



Cn. 

^ 

100% 

X^ 

^ 

Si. 

/ 

f 

90% 

\ 

k       rf 

^ 

11 

...^ 

"«>-^ 

^ 

7 

/ 

^ 

^ 

-^ 

80% 

70% 

60% 

50% 

40% 

30% 

20% 

10% 

0% 

Jan. 

Feb. 

March 

April 

May 

June 

July 

Aug. 

Sept. 

Oct. 

Nov. 

Dec. 

30  THE  SOCIAL  CAUSES  OF  CRIME  [§4 

at  least  from  the  annals  of  the  government  criminal 
statistics. 

The  menace  to  property  does  not  begin  again  until  winter. 
The  darkness  of  the  nights  in  the  winter  season  have  undoubt- 
edly a  certain  significance  in  this  connection,  as  being  advan- 
tageous to  burglary.  Yet  the  chief  reason  for  the  increase 
must  not  be  sought  in  them,  as  is  proved  by  the  fact  that  the 
fluctuation  between  summer  and  winter  is  greater  in  the  case 
of  small  thefts  than  in  that  of  large  ones.  With  the  struggle 
for  daily  bread  and  the  hardships  that  hunger  and  cold  im- 
pose upon  the  poor,  their  resistance  against  the  temptation 
to  steal  is  weakened. 

The  close  connection  between  social  misery  and  dishonesty 
can  only  be  touched  on  here.  I  will  not,  however,  omit  to 
point  out  how  statistics  might  contribute  to  our  knowledge 
of  whether,  and  to  what  extent,  the  increase  of  thefts  in  winter 
is  connected  with  the  economic  situation.  If  the  outward 
necessity  is  actually  the  cause,  those  that  feel  it  most,  that 
is  the  women  and  children,  should  also  show  the  greatest 
differences  during  the  different  seasons.  Thus  separate  sta- 
tistics should  be  kept  of  them,  and  also  of  the  cases  of  theft 
of  food,  which  has  not  hitherto  been  done. 

On  the  other  hand,  certain  crimes  that  are  now  included 
might  be  omitted.  Abandonment,  murder,  manslaughter, 
illegal  imprisonment,  robbery,  and  others,  are  much  too  rare 
offenses;  the  effect  of  chance  on  the  times  when  they  are  com- 
mitted may  too  easily  lead  to  a  false  conclusion. 

§  4.  Eace  and  Beligion 

General  opinion  would  immediately  answer  in  the  aflBrma- 
tive  the  question  whether  different  peoples  show  differences 
in  criminal  inclination.  And  yet  this  is  something  about  which 
we  really  know  very  little.    It  must  be  admitted  that  in  no 


§4]  RACE  AND  RELIGION  31 

other  field  are  the  diflSculties  equally  great,  the  most  important 
being  the  incomparability  of  legislation.  A  classic  example, 
and  one  that  at  the  same  time  may  serve  as  an  instance  of 
the  possibility  of  making  statistics  support  a  theory,  is  Le- 
goyt's  ^  table,  cited  by  von  Oettingen.  According  to  this, 
from  1850  to  1860  there  was  one  convict  to  every  81.9  in- 
habitants in  Austria,  and  one  to  every  81.8  in  Spain;  whereas 
in  Prussia  there  was  one  to  every  22.9,  and  in  Hanover  one 
to  every  12.8.  Thus,  Prussia  and  Hanover,  the  Protestant 
Germanic  states,  would  make  a  poor  showing  compared  with 
the  Catholic  countries.  But  in  Hanover  and  Prussia  the 
numerous  cases  of  infringement  of  the  forest  laws  were  in- 
cluded, which  Legoyt  wisely  fails  to  state. 

Such  errors  are  avoidable,  but  not  so  those  that  are  owing 
to  direct  variations  in  the  laws.  Sexual  intercourse  between 
men,  for  instance,  is  a  punishable  crime  ^  in  the  Slavic  and 
Germanic  countries  with  the  exception  of  Holland  and,  since 
recently,  of  Norway,  while  in  the  Latin  countries,  on  the 
contrary,  it  is  so  only  under  certain  conditions;  criminal 
abortion  is  punished  by  an  extreme  penalty  in  some  countries, 
in  others  it  is  judged  most  mildly;  some  nations  regard  even 
the  attempt  as  punishable,  others  only  the  accomplished 
crime  .^ 

To  this  difficulty,  which  lies  in  the  definitions  of  the  of- 
fenses, are  added  the  differences  in  the  prosecution  of  crime. 
Bodio  ^  points  out  that  in  England  52  of  every  100  persons 
accused  of  homicide  are  convicted,  and  57  in  Scotland,  as 

^  v(m  Oettingen,  "Die  Moralstatistik  in  ihrer  Bedeutiing  fUr  die  Soziale- 
thik."  3d  ed.,  Erlangen,  1882,  p.  455. 

^  Wachenfeld,  "  Homosexualitat  und  Strafgesetz,"  Leipzig,  Dieterichsche 
Verlagsbuch,  1901,  p.  59. 

'  Levnn  und  Breuning,  loc.  oil.  p.  85. 

*  Bodio,  "Gli  omicidii  in  alcuni  stati  d'Europa"  (Bulletin  de  I'institut 
intemationale  de  statistique,  IV,  p.  205). 


32  THE  SOCIAL  CAUSES  OF  CRIME  [§  4 

against  92  in  Germany.  This  difference  is  explained  by  the 
fact  that  in  Great  Britain  the  verdict  of  manslaughter  must 
be  unanimous,  which  is  not  the  case  in  Germany.  In  a  com- 
parative table  Garofalo  ^  shows  that  Austria  has  a  higher 
criminality  in  aggravated  assault  and  battery  cases  than 
Italy,  and  that,  as  regards  theft,  Germany  exceeds  his  native 
land  by  more  than  250%.  Assuming  the  correctness  of  these 
figures,  one  is  still  justified  in  asking  whether  the  better 
organization  of  the  police  and  the  courts,  perhaps  also  the 
greater  reliability  of  the  statistics,  may  not  explain  this  phe- 
nomenon, rather  than  the  assumption  of  more  brutality  in 
Austria  and  less  honesty  in  Germany. 

Lombroso  says :  ^  "In  our  civilized  world  it  is  much  easier 
and  less  uncertain  (than  among  savage  peoples)  to  prove  that 
ethnology  influences  criminality."  This  is  certainly  not  the 
case.  Apart  from  the  fact  that,  as  regards  the  term  "race," 
we  have  not  yet  come  to  conclusive  results,  and  further,  that 
we  no  longer  find  unmixed  races,^  the  economic  conditions  in 
the  different  countries  vary  to  such  an  extent  that  it  is  almost 
impossible  to  determine  what  part  difference  of  race  plays 
in  criminality. 

This  is  not  to  be  understood  as  meaning  that  racial 
peculiarities  are  without  psychological  significance;  deep 
psychological  study  is  not  necessary  to  the  recognition  of  the 
differences  between  the  easily  excited  Italians  and  the  de- 
liberate Northern  Europeans,  between  the  calm,  somewhat 
phlegmatic,  inhabitants  of  Lower  Germany  and  the  merry, 
boisterous  people  of  the  Palatinate.  Also  in  statistics,  though 
in  other  spheres  than  that  of  criminology,  such  differences 

^  Garofalo,  "La  criminologie,"  Paris,  Felix  Alcan,  1895,  p.  440. 

*  Lombroso,  "Die  Ursachen  und  Bekampfung  des  Verbrechens,"  Berlin, 
1902. 

'  Coiapa,Te  Petersilie's  race  investigation,  "  Untersuchungen  iiberdieKriini- 
nalitat  in  der  Pravinz  Sachsen,"  1804,  p.  69. 


§4] 


RACE  AND  RELIGION 


33 


are  traceable.     From  this  point  of  view  a  deviation  is  not 
without  value. 

A  glance  at  the  frequency  of  illegitimate  births  in  the  coun- 
tries of  Europe  shows  quite  peculiar  differences. 


TABLE  V 

Illegitimate  Births  in  Europe 

(After  Bodio:  "  Movimento  della  popolazione,"  Bulletin  de  I'lnstitut  inter- 
national de  statistique,  Rom.,  1897,  X,  p.  118.) 


COUNTBIES 

Austria 

Sweden     .    . 

Denmark      

Hungary 

Germany 

Belgium 

France  

Scotland 

Norway 

Italy      

Finland 

Roumania 

Switzerland      

England 

Holland 

Ireland      

Russia  (excluding  Poland)     . 
Servia 


States  the  statistics  of  which  can  scarcely  be  relied  upon, 
like  Servia  with  1%,  and  Russia  with  2.7%,  illegitimate  chil- 
dren, may  well  be  omitted  from  our  consideration.  Of  the 
others,  Austria  stands  at  the  head  with  14.7%,  followed  closely 
by  Germany  with  9.3%,  while  Switzerland  has  only  4.7%, 
England  4.3%,  and  Holland  3.1%,  illegitimate  births. 

Separate  provinces  in  the  same  country  differ  from  one 
another  even  more  decidedly.     In  Belgium  the  number  of 


34  THE  SOCIAL  CAUSES  OF  CRBIE  [§  4 

illegitimate  births  varies  between  2.6%  in  Limburg  and  14.6% 
in  Brabant.  In  Germany  the  figures  have  remained  about 
the  same  for  many  years  (1881-1890  9.3%,  1891-1900  9.1%). 
In  1900  Berlin  showed  the  highest  figures,  14.9%;  this  is 
partly  due  to  the  lying-in  hospitals  that  exist  there,  as  in  all 
the  larger  cities  and  university  towns.  Bavaria,  on  the  right 
of  the  Rhine,  with  14.3%,  is  not  far  behind  the  capital;  it 
must  be  admitted  that  in  Bavaria  marriage  is  made  somewhat 
difficult  by  legislation,  yet  this  cannot  be  the  chief  cause,  as 
the  Palatinate  has  only  6.2%  of  illegitimate  births.  The 
minimum  number,  2.7%,  is  found  in  Westphalia. 

Most  striking  of  all  are  the  differences  in  Austria.  Accord- 
ing to  Szarlardi,^  in  Istria,  of  100  children,  2.06%  are  of  ille- 
gitimate origin,  but  in  Karinthia  44.16%!  Moreover,  in  the 
territories  in  which  the  number  of  illegitimate  births  is  al- 
ready low,  it  seems  to  be  growing  lower  still,  whereas  the  high 
percentage  in  Karinthia,  Styria,  Lower  and  Upper  Austria, 
continues  to  increase. 

Similar  variations  among  different  peoples  and  in  different 
sections  are  also  found  in  the  statistics  of  suicide  (Table  VI). 

According  to  von  Mayr,^  Monaco  (with  301  per  million  in- 
habitants) stands,  for  obvious  reasons,  at  the  head  of  those 
countries  that  are  especially  menaced  by  suicide;  then  follows, 
at  no  great  distance,  Denmark  with  255  cases,  while  Italy  has 
only  49,  Russia  32,  Spain  24,  and  Bosnia  with  Herzegovina 
only  6.  Morselli's  ^  investigations  show  that  the  Germanic 
race  is  especially  inclined  to  suicide  and,  of  its  sub-divisions, 
particularly  the  Northern  Germans,  while  the  Slavs  and  the 
Western  Latin  peoples  (Spaniards,  Central  and  Southern 
Italians)  show  but  a  slight  tendency  in  that  direction.     The 

^  Szalardi,  "Der  gegenwartige  Stand  des  Pindelwesens  in  Enropa,"  1896. 
2  G.  von  Mayr,  "Der  Selbstmord"  (Allg.  statist.  Archiv,  1897,  p.  720). 
*  MoTseUi,  loc.  cit. 


§4] 


RACE  AND  RELIGION 


35 


differences  within  the  same  country  are  also  most  character- 
istic. From  1896  to  1900,  in  Coburg-Gotha  420  persons  per 
million  inhabitants  killed  themselves,  in  Prussia  1891  to 
1900,  319  in  Schleswig-Holstein,  307  in  Saxony,  while  the 
average  for  the  whole  of  Germany  was  only  209;  Westphalia 
and  Posen  showed  the  lowest  figures,  105  and  91. 


TABLE  VI 

SinCIDES   IN   THE   CoUNTRIEa   OP   EuROPE 

(After  von  Mayr:  "Der  Selbstmord"  Allg.  statist.  Archiv,  1896,  p.  722.) 
Number  of  suicides  per  1,000,000  inhabitants. 


Countries 


Monaco 

Denmark 

Switzerland 

Germany 

France    

Austria 

Belgium      

Sweden 

Hungary,  excl.  Croatia  and  Slavonia 

England  and  Wales      

Norway 

Scotland 

The  Netherlands 

Croatia-Slavonia 

Lichtenstein 

Italy 

Roumania 

Finland 

Servia 

Russia 

Luxemburg 

Spain 

Ireland 

Bosnia  and  Herzegovina      


1881-1890 


301 

255 

227 

209 

207 

161 

114 

107 

96 

77 

68 

55 

55 

55 

53 

49 

41 

39 

38 

32 

28 

24 

23 

6 


Not  for  a  moment  would  I  seek  to  explain  these  peculiar 
variations  in  the  illegitimate  births  and  suicides  by  racial 
differences  alone.     Religious  and  economic  reasons  are  also 


36  THE  SOCIAL  CAUSES  OF  CRIME  [§  4 

of  equal  importance  with  legislative  ones,  as  Sweden  proves. 
But,  without  forcing  the  facts,  we  cannot  exclude  the  influence 
of  racial  characteristics  altogether.  This  is  not  the  place  to 
trace  it  out  in  detail,  as  it  would  merely  serve  to  show  that  eth- 
nological difiPerences  are  of  psychological  importance.  At  first 
sight  the  Catholic  countries  seem  to  make  a  better  showing 
than  the  Protestant  ones,  but,  although  the  priest's  advice 
may  aid  many  a  Catholic  in  suppressing  his  thoughts  of  suicide, 
religion  is  nevertheless  not  determinative,  still  less  is  it  a 
"measure  of  the  culture  and  moral  strength  of  a  people"; 
for,  as  Gaupp  ^  rightly  emphasizes,  the  high  suicide  figures  of 
France,  compared  with  the  low  ones  of  England,  show  that 
the  causes  are  far  more  complicated. 

I  must  forego  the  enticing  task  of  comparing  in  a  similar 
way  the  criminality  of  the  different  countries,  owing  to  the 
technical  difficulties  of  which  I  have  spoken.  At  present  the 
necessary  statistical  basis  is  lacking  to  such  an  extent  that  it 
is  scarcely  possible  to  get  beyond  surmises.  The  attempt 
may,  however,  be  made  to  contrast  the  different  sections  of  the 
same  country.  Here  too,  however,  we  find  certain  limitations. 
In  order  to  find  the  racial  peculiarities,  we  should  be  obliged 
to  inquire  the  birthplace  of  the  perpetrator  of  every  crime, 
and  even  that  knowledge  would  not  prove  to  what  race  he 
belonged.  Statistics  as  a  rule  take  into  consideration  only  the 
place  where  the  crime  is  committed,  and,  as  I  believe,  rightly. 
First,  because,  as  the  criminal  statistics  of  the  German  Em- 
pire have  proved :  ^  "  the  place  where  the  crime  is  committed 
and  the  place  of  residence  are  the  same,  except  in  an  insig- 
nificant fraction  of  the  crimes  committed";  and  then,  because 
the  social  causes  are  more  important  than  the  individual  ones. 

The  importance  of  considering  separately  the  place  where 

1  Gaupp,  "t)ber  den  Selbstmord,"  Munich,  1910. 

2  N.  F.  CXXI,  II.  p.  26. 


§4]  RACE  AND  RELIGION  37 

the  crime  was  committed  and  the  birthplace  of  the  criminal 
must,  however,  certainly  not  be  undervalued;  in  some  cases 
such  a  separation  may  serve  to  explain  certain  striking  phe- 
nomena. After  making  such  an  investigation,  Joly  ^  found 
no  change  in  the  twenty  departments  that  were  criminally 
best  and  the  twenty  that  were  criminally  worst  in  France; 
the  order  of  rank  remained  the  same,  whether  he  made  the 
birthplace  or  the  place  where  the  crime  was  committed 
the  basis  of  his  classification.  Corsica,  however,  showed  the 
highest  number  within  the  country,  whereas  the  Corsicans 
living  away  from  the  island  occupied  only  the  sixty-fifth 
place.  From  this,  Joly  concluded  that  the  social  milieu  of 
Corsica,  and  not  the  racial  characteristics  of  the  Corsicans 
themselves,  was  the  cause  of  the  greater  inclination  towards 
crime  on  the  island. 

With  this  view  I  cannot  agree.  While  property  is  seldom 
endangered  in  Corsica,  and  then  generally  by  foreigners,  the 
principal  crime  of  the  Corsicans  is  murder,  above  all  from  mo- 
tives of  revenge.  For  every  murder  committed  in  France 
(calculated  according  to  the  present  population)  there  are  11 
in  Corsica.  In  spite  of  all  the  efforts  of  the  French  govern- 
ment, the  blood  feud  has  not  quite  died  out  in  Corsica,  and 
at  the  time  of  Joly's  investigations  it  was  in  a  flourishing  state. 
The  Corsican  who  is  living  away  from  his  home  and  from 
family  quarrels  lacks  this  powerful  incentive  to  murder. 
But  in  the  country  itself  the  effect  of  the  vendetta  is  still  that 
of  a  folk-custom.  And  such  customs,  especially  when  they 
appear  in  so  peculiar  a  way  and  are  so  deeply  rooted,  have  for 
their  deepest  source  racial  characteristics. 

This  view  is  borne  out  by  the  varying  distribution  of  the 
vendetta  in  Corsica  itself.  In  some  of  the  districts  where  it 
centres  the  necessity  of  defending  oneself  against  attack,  or 
^  Joly,  "La  France  criminelle,"  Paris,  Cerf,  1889. 


125531 


38  THE  SOCIAL  CAUSES  OF  CRIME  [§4 

of  being  able  to  escape  into  the  woods,  has  actually  deter- 
mined the  type  of  house  architecture  there.  Some  of  the 
houses  in  Sartena,  particularly  in  Bonifacio,  resemble  little 
forts,  as  I  have  had  occasion  to  see  myself.  On  the  other 
hand,  the  east  coast  of  the  island,  where  the  population  is 
mixed  with  Italian  immigrants,  and  Calvi  on  the  west  coast, 
which  was  populated  by  the  Greeks,  have  remained  free  from 
the  custom  of  blood  feuds. 

A  very  instructive  work  is  that  of  Niceforo  ^  on  the  crim- 
inality of  Sardinia.  It  may  also  serve  as  a  model  for  further 
investigations,  for  the  author  made  a  special  territory  (in 
which  the  population  received  little  increase  from  outside) 
the  subject  of  his  research,  and  examined  on  the  spot  the  ele- 
ments which  composed  the  people,  and  studied  their  life  and 
customs.  Sardinia  has  a  population  that  is  extremely  dis- 
posed to  crime.  Murder  and  manslaughter,  for  instance,  are 
fourteen  times  more  frequent  there  than  in  the  best  province 
of  Italy,  Lombardy.  More  important  still,  however,  are  the 
characteristic  differences  of  the  separate  smaller  districts  on 
the  island.  In  two  adjoining  districts  the  number  of  cases  of 
robbery  and  extortion  is  absolutely  different;  in  Nuoro  there 
are  67.45  such  crimes  per  million  inhabitants;  in  Sassari,  11.92; 
whereas  in  Venice  there  are  only  3.13.  Niceforo  positively 
establishes  the  existence  of  a  "zona  delinquente"  on  the 
island.  The  population  of  this  criminal  territory  is  descended 
from  the  Mediterranean  race  of  Sergi,  which  at  the  same  time 
has  its  home  in  Asia  Minor,  Northern  Africa,  Spain,  and 
Southern  Italy,  while  in  the  rest  of  Sardinia  the  Celtic  race 
predominates.  Assuming  the  statements  to  be  correct  —  and 
I  must  emphasize  that  the  work  impresses  me  as  reliable  — 
we  should  have  here  a  clear  proof  of  the  importance  of 
descent. 

^  Niceforo,  "La  delinquenza  in  Sardegna,"  Palermo,  1897. 


§4] 


RACE  AND  RELIGION 


39 


Beurle  ^  has  collected  and  classified  some  interesting  figures 
from  the  Austrian  criminal  statistics.  In  ten  districts  of  the 
circuit  court,  Bnix  with  94%,  three  of  them  with  from  82-91%, 
German  population,  there  were  475  cases  of  theft  per  hundred 
thousand  inhabitants;  in  the  district  of  Laun,  with  97% 
Czechs,  there  were  1030,  In  the  Budweis  circuit  there  are 
six  districts  where  from  87  to  99%  of  the  inhabitants  are 
Germans,  in  the  other  districts  not  more  than  52%,  in  some 
less  than  10%,  are  Germans,  In  the  German  districts  there 
were  524  cases  of  theft,  as  against  951  in  the  others.  The 
same  thing  is  shown  in  Table  VII. 


TABLE  VII 


1879-1883  PEB  100,000 
Persons  of  Punish- 
able Age  thebe  webe 

All 
Chimes 

Theft 
114 

Aggrava- 
ted As- 
sault AND 
Battery 

Other 
Crimes 

1882 
Theft 

1882 
Assault 

AND 

Battery 

(a)  In    districts 
chiefly  German  . 

204 

19 

71 

518 

219 

(b)  In  other  districts 

224 

129 

34 

61 

669 

568 

Pleasing  as  is  the  showing  of  the  German  population 
compared  with  the  Slavic,  it  would  yet  be  a  mistake  to  draw 
far-reaching  conclusions  from  it.  Herz,^  too,  found,  in  the 
different  states  of  Austria,  fewer  cases  of  theft  in  the  German 
parts  than  in  those  where  Germans  are  in  the  minority;  and 
the  same  phenomenon  appears  in  the  figures  that  Kurella  ^ 
has  cited,  according  to  which  the  Baltic  Provinces  are  favor- 
ably distinguished  from  the  Russian  ones.  Some  of  the  figures 
used,  however,  embrace  too  short  a  period  of  time;  moreover, 

'  Beurle,  "Einige  Ergebnisse  der  osterreichischen  Kriminaistatistik " 
(ZStW.  VIII.  325). 

^  Herz,  "Die  Kriminalitat  in  den  osterreichischen  Kronlandern"  (MSchr. 
KrimPsych.  L  551). 

'  Kurella,  "  Naturgeschichte  des  Verbrechens,"  Stuttgart,  Ferdinand  Enke, 
1893.  p.  157. 


40  THE  SOCIAL  CAUSES  OF  CRIME  [§  4 

educational  and  economic  influences   must   be  considered 
which,  perhaps,  would  sooner  lead  to  an  understanding  of  the 
phenomenon  than  does  knowledge  of  the  diflFerence  in  race. 

Our  interest  centres,  of  course,  mainly  on  Germany  itself. 
The  reliability  of  the  statistical  proofs,  on  the  one  hand,  and 
our  accurate  knowledge  of  the  people's  mode  of  life  and  of  the 
economic  and  social  situation,  on  the  other,  give  us  the  right 
to  examine  our  home  conditions  with  a  view  to  ascertaining 
whether,  in  our  country,  racial  descent  is  of  any  significance. 
It  is  to  be  regretted  that  only  in  the  case  of  a  few  crimes  has 
the  statistical  department  ascertained  the  place  of  the  deed, 
and  then  brought  the  figures  into  relation  with  the  population 
living  in  that  particular  district.  This  material,  though  lim- 
ited, is  valuable  for  comparison,  the  more  so  as  it  embraces 
fully  fifteen  years.  A  period  of  this  length  excludes  the  danger 
of  chance  and  temporary  influences  on  criminality.  Such  a 
temporary  increase  in  the  number  of  convictions  in  a  district 
took  place,  for  instance,  during  the  construction  of  the  North- 
east Canal,  owing  to  the  large  number  of  laborers  that  were 
brought  into  a  small  and  usually  quiet  section.  Such  errors 
can  be  avoided  only  by  collecting  statistics  covering  longer 
periods  of  time. 

The  results  of  the  calculations  mentioned  are  given  in 
volume  126  of  the  "Statistik  des  Deutschen  Reiches,"  in  large 
tables  and  five  maps.  From  the  tables  I  reproduce  in  Table 
VIII  the  figures  for  the  provinces  and  government  districts, 
or  circuits  only,  omitting  the  small  jurisdictions.  This  in- 
volves the  loss  of  many  important  details,  but  it  was  essential 
first  to  establish  the  main  facts.^ 

1  Recently  several  monographs  have  appeared  dealing  with  the  criminal- 
ity of  small  districts:  Weidemann,  "Die  Ursachen  der  Kriminalitat  im  Herzog- 
tum  Sachsen-Meiningen  ";  Blau,  "  Kriminalstatistische  Untersuchung  der 
Kreise  Marienwerder  mid  Thorn";  Petersilie,  " Untersuchmigen  iiber  die 
Kriminalitat  in  der  Provinz  Sachsen."    Of  these  works,  the  last  mentioned  has 


§4] 


RACE  AND  RELIGION 


41 


TABLE   Vni 

Place  op  the  Chimes  Committed  in  Germany  from  1883  to  1902 
Average  number  during  1883-1902,  per  100,000  civilians  of  punishable  age. 


All 
Chimes 

Resist- 

Feloni- 
ous 

Aggrava- 
ted As- 
sault AND 

PlACE 

AGAINST 

National 

ing 
Officebs, 

Assault 

AND 

Theft 

FBAmj 

Laws 

ETC. 

Batteby 

Batteby 

Gov.  Dist.  Kijnigsberg 

1526 

51 

1.84 

325 

36 

245 

"         "    Gumbinnen 

1746 

35 

2.22 

419 

43 

243 

"         "    Danzig     .    . 

1541 

77 

3.92 

348 

38 

287 

"         "    Marienwerder 

1524 

42 

2.59 

393 

32 

301 

City  of  Berlin     .... 

1408 

47 

0.53 

249 

69 

112 

Gov.  Dist.  Potsdam  . 

1127 

47 

0.94 

202 

39 

167 

"        "      Frankfort 

957 

33 

1.24 

193 

34 

144 

"     Stettin      . 

1214 

49 

2.16 

199 

32 

213 

"       "     Koslin  .    . 

938 

25 

2.63 

179 

22 

209 

"        "      Stralsund 

867 

26 

0.96 

170 

29 

138 

"        "      Posen    .    . 

1424 

87 

1.97 

334 

31 

273 

"        "      Bromberg 

1842 

46 

3.32 

464 

36 

358 

"        "      Breslau 

1312 

59 

0.97 

243 

54 

178 

"       "     Liegnitz    . 

871 

28 

0.74 

189 

49 

89 

"        "      Oppeln 

1860 

72 

1.75 

317 

46 

365 

"        "      Magdeburg 

1130 

43 

1.22 

188 

43 

179 

"        "      Merseburg 

1054 

31 

0.78 

208 

44 

142 

"      Erfurt  .    . 

946 

32 

0.78 

167 

47 

119 

*'        "      Schleswig 

782 

54 

0.81 

138 

35 

91 

"        "      Hanover  . 

1096 

36 

1.03 

168 

59 

154 

"        "      Hildesheim 

874 

21 

0.54 

172 

46 

136 

"       "     Liineburg 

847 

22 

1.11 

147 

42 

129 

"     Stade    .    . 

848 

23 

0.92 

126 

44 

152 

"       "     Osnabriick 

649 

16 

1.19 

81 

24 

113 

"        "      Aurich 

699 

19 

1.03 

121 

38 

298 

"       "     Mtinster  . 

671 

33 

1.73 

95 

24 

147 

"        "      Minden    . 

514 

18 

1.44 

79 

22 

99 

"        "      Arnsberg  . 

971 

33 

3.15 

138 

32 

233 

"      Cassel  .    . 

801 

25 

1.12 

148 

29 

136 

"        "      Wiesbaden 

963 

52 

1.19 

140 

46 

146 

"        "      Coblenz    . 

689 

29 

1.36 

99 

27 

154 

"        "      Dusseldorf 

917 

40 

2.32 

139 

33 

189 

"        "      Cologne    . 

1003 

60 

1.59 

137 

39 

199 

"      Trier     .    . 

811 

28 

1.77 

116 

26 

224 

"        "      Aachen 

718 

36 

1.01 

98 

26 

148 

"       "     Sigmaringen 

589 

22 

0.42 

86 

35 

115 

Prussia 

1111 

109 

1.56 

219 

S9 

188 

Gov.  Dist.  Upper  Bavaria 

1528 

39 

3.38 

244 

109 

358 

"        "      Lower 

1484 

32 

6.28 

232 

72 

441 

"      The  Palatinate 

1657 

36 

2.17 

187 

63 

517 

"        "      Upper        " 

1253 

27 

3.52 

213 

64 

331 

"        "      UpperFranconia 

1164 

SO 

2.25 

189 

51 

302 

"        "      Central      " 

1326 

87 

2.25 

221 

81 

315 

"        "      Lower        " 

1104 

31 

1.25 

164 

67 

261 

"       "     Swabia     .    .    . 

1118 

23 

1.93 

185 

89 

238 

Bavaria 

1380 

S3 

2.92 

209 

77 

349 

Circuit  Dresden     .    . 

966 

63 

0.3 

224 

62 

66 

"      Leipzig   .    .    . 

976 

82 

0.32 

243 

63 

78 

"      Zwiclcau      .    . 

921 

59 

0.45 

179 

48 

100 

"      Bautzen      .    . 

642 

30 

0.24 

163 

41 

67 

Saxony     

919 

58 

0.3.'-. 

205 

53 

82 

42 


THE  SOCIAL  CAUSES  OF  CRIME 
TABLE  VIII  —  Continued 


[§4 


Place 

All 

Chimes 

AGAINST 

National 
Laws 

Resist- 
ing 
Officers, 
Etc. 

Feloni- 
ous 

Assault 
and 

Battery 

Theft 

Fraud 

Aggrava- 
ted As- 
sault AND 
Battebt 

Neckar  Circuit 

Schwarzwald  Circuit     .    . 

Salpt  Circuit 

Danube  Circuit      .... 

Wurttemberg 

1021 
945 
801 
994 

948 

52 
41 

28 
42 

43 

1.71 
1.86 
1.44 
1.41 

1.61 

163 
124 
151 
152 

179 

52 
47 
52 
71 

56 

183 
228 
133 
146 

175 

District  Constance     .    .    . 
"        Freiburg   .... 
"        Karlsruhe.    .    .    . 
"       Mannheim    .    .    . 

Baden 

747 
832 
1014 
1211 

973 

16 
25 
36 
37 

29 

1.38 
1.59 
1.86 
1.88 

1.72 

132 
146 
173 
187 

166 

55 
55 
59 
66 

59 

133 
176 
256 
316 

229 

Prov.  Starkenburg     .    .    . 
"      Upper  Hesse    .    .    . 
"      Rheinhessen     .    .    . 

Hesse 

821 
769 
1087 

889 

27 
16 

27 

24 

1.46 
1.22 
1.61 

1.44 

123 
107 
151 

118 

37 
31 
61 

45 

267 
169 
269 

220 

Mecklenburg -Schwerin 

Saxe-Weimar 

Mecklenburg-Strelitz     . 

823 
841 
834 

26 
31 
25 

1.01 
0.92 
1.17 

169 
216 
194 

40 
61 

27 

142 
77 
129 

Dukedom  of  Oldenburg    . 
Principality  of  Liibeck 
Principality  of  Birkenfeld 

Oldenburg 

753 
1258 
789 

806 

11 
34 
29 

15 

1.77 
1.41 
1.22 

1.68 

131 
250 
140 

144 

48 
67 
29 

50 

133 
153 

158 

137 

Brunswick 

Saxe-Meiningen  .... 
Saxe-Altenburg  .... 
Saxe-Coburg-Gotha   .    . 

Anhalt 

Schwarzburg-Sonders- 

hausen     

Schwarzburg-Rudolstadt 

Waldeck 

Reuss  Older  Line    .    .    . 
Reuss  Younger  Line  .    . 
Schaumburg-Lippe     .    . 

Lippe    

Liibeck 

Bremen 

Hamburg 

Dist.  Lower  Alsace     .    . 

"     Upper  Alsace     .    . 

"     Lorraine     .    . 
Alsace  Lorraine  .... 

1059 
1174 
820 
870 
1126 

1238 

1445 

439 

901 

1018 

419 

568 

991 

1732 

1459 

802 

899 

751 

816 

23 
38 
17 
27 
39 

29 
61 
11 
44 

32 
13 
13 
53 
73 
99 
23 
29 
22 
22 

0.78 
1.35 
0.36 
1.21 
1.33 

0.47 
1.06 
0.89 
0.43 
0.50 
2.02 
0.46 
1.39 
0.91 
0.60 
1.47 
1.94 
1.25 
1.54 

211 
189 
233 
169 
217 

349 
352 

97 
221 
267 

72 
135 
206 
297 
265 
113 
134 
105 
117 

51 
48 
53 
44 
45 

56 
75 
26 
69 
80 
27 
41 
66 
113 
77 
28 
32 
35 
31 

136 
191 
88 
143 
165 

152 
215 
491 
114 

93 

62 

66 

95 

227 

104 

233 

233 

176 

215 

German  Empire      .    .    . 

1104 

41 

1.58 

201 

47 

196 

From  the  "  Statistik  des  Deutschen  Reiches,"  Vol.  155,  III. 


§4]  RACE  AND  RELIGION  43 

A  glance  at  the  maps,  which  I  did  not  think  it  necessary  to 
reproduce,  shows,  first  of  all,  that  the  whole  east  of  Germany, 
as  well  as  Upper  and  Lower  Bavaria  and  the  Palatinate,  has 
a  large  number  of  convictions.  While  in  the  whole  of  Ger- 
many there  were  1104  convicted  persons  to  every  100,000 
persons  of  punishable  age,  the  number  of  such  convicts  in  the 
government  districts  was:  Oppeln  1860,  Bromberg  1842, 
Gumbinnen  1746,  Bremen  1732,  the  Palatinate  1657,  Danzig 
1541,  Upper  Bavaria  1528,  Konigsberg  1526,  Marienwerder 
1522,  Lower  Bavaria  1484,  Posen  1424,  and  Mannheim  1211. 
On  the  other  hand,  Schaumburg-Lippe  had  only  419,  and 
Waldeck  439  convictions.  Waldeck  offers  an  excellent  op- 
portunity for  comparison  with  a  section  containing  approxi- 
mately the  same  number  of  inhabitants.  In  1890  Waldeck 
had  a  population  of  38,986,  Pirmasens  38,327.  In  Waldeck 
there  were  annually  172  convictions,  while  in  Pirmasens  there 
were  885 ! 

A  deeper  insight  into  the  causes  of  these  differences  than 
can  be  obtained  from  a  consideration  of  the  criminality  as  a 
whole  is  afforded  by  an  examination  of  the  separate  crimes. 
Of  these,  four  have  been  chosen,  and  their  statistics  given: 
resistance  to  officers,  aggravated  assault  and  battery,  theft, 
and  fraud.  Two  of  these  crimes,  theft  and  aggravated  assault 
and  battery,  are  characteristic  of  the  general  criminal  physi- 
ognomy of  a  district,  simply  because  they  are  much  commoner 
than  any  others.  Nearly  half  of  all  convictions  are  for  these 
two  offenses. 

During  fifteen  years  of  observation,  among  100,000  pun- 
ishable persons,  aggravated  assault  and  battery  led  to  con- 
best  overcome  the  difficulties  of  the  methodology  spoken  of  by  Dochow  "tlber 
Kriminalstatistische  Einzeluntersuchungen"  (MSchrKrimPsych.  I,  643). 
Yet  we  cannot  expect  really  valuable  results  until  a  few  more  similar  investi- 
gations shall  make  it  possible  to  compare  the  practicability  of  the  method 
and  the  validity  of  the  conclusions. 


44  THE  SOCIAL  CAUSES  OF  CREME  [§  4 

viction  196  times.  In  comparing  this  crime  with  the  whole 
criminality,  we  are  at  once  struck  by  the  equality  with  which 
it  is  distributed,  though,  indeed,  Bavaria  and  the  Palatinate 
appear  to  be  somewhat  more  heavily  burdened  in  this  respect. 
Its  centre  is  the  Palatinate  with  517  convictions,  then  follows 
Lower  Bavaria  with  441,  Bromberg  with  358,  Mannheim  with 
316.  The  district  of  Dresden,  on  the  other  hand,  shows  only  66, 
and  Schaumburg-Lippe  62.  Here,  too,  Waldeck  stands  in 
strong  contrast  to  Pirmasens,  which  is  at  the  very  top  of  the  list. 

Thus  we  see  that  aggravated  assault  and  battery  is  concen- 
trated at  three  points:  in  Bromberg,  in  the  Palatinate,  and  in 
Southeastern  Bavaria.  Round  these  three  centres  are  grouped 
the  neighboring  districts,  scarcely  behind  them  in  this  respect. 
The  explanation  of  this  geographical  distribution  immediately 
suggests  itself;  the  three  centres  of  this  brutal  crime  are  also  / 
the  three  centres  of  alcoholic  indulgence  in  its  various  forms: 
in  the  east,  spirits,  in  Bavaria,  beer,  and  in  the  Palatinate, 
wine.  This  is  undoubtedly  the  explanation  of  the  geographi- 
cal distribution. 

The  connection  between  aggravated  assault  and  battery 
and  alcoholic  indulgence  is  important  enough  to  demand  de- 
tailed treatment.  Let  me  say  at  the  outset  that  the  danger- 
ousness  of  the  different  alcoholic  drinks  does  not  correspond 
to  the  generally  accepted  opinion.  If  we  might  determine  the 
degree  of  seriousness  from  the  number  of  the  crimes,  the  se- 
quence would  be:  wine,  beer,  spirits.  Wlassak,^  however,  in 
his  investigation  of  the  question  in  Moravian-Ostrau,  found 
another  order:  beer,  wine,  spirits;  which  more  nearly  corre- 
sponds to  the  quantity  of  alcohol  contained  in  the  different 
beverages.    In  any  case,  we  can  certainly  agree  with  Foldes^ 

1  Wlassak,  "Der  Alkoholismus  im  Gebiete  von  Mahrisch-Ostrau."  Bericht 
auf  dem  VIII.    Intemationalen  Kongress  gegen  den  Alkoholismus. 

*  Foldes,  "Einige  Ergebnisse  der  neueren  Kriminalstatistik"  (ZStW.  XI, 
635). 


§4]  RACE  AND  RELIGION  45 

in  thinking  that  the  kind  of  beverage  is  unimportant,  as  com- 
pared with  the  eflBcacy  of  the  alcohol  it  contains.  On  the 
occasion  of  a  lecture  that  I  gave  in  this  connection,  my  state- 
ments were  met  with  the  argument  that  just  the  centre  of 
aggravated  assault  and  battery,  Pirmasens,  refuted  my  view, 
little  wine  being  consumed  there  owing  to  the  poverty  of  the 
inhabitants.  On  making  inquiries,  I  found  this  to  be  the 
case,  but  learned  at  the  same  time  that  the  consumption  of 
spirits  in  Pirmasen  is  excessive.  In  the  districts  of  Mann- 
heim and  Heidelberg,  with  which  I  am  much  more  familiar, 
I  can  assert  with  assurance  that  alcohol  in  all  its  forms  plays 
the  principal,  if  not  the  only,  part  in  the  extremely  numer- 
ous cases  of  aggravated  assault  and  battery  that  occur  there. 

It  is  true  that  the  inhabitants  of  the  Palatinate  have  the 
reputation  of  being  lively  and  irritable  people,  "screechers" 
("Kjeischer"),  as  they  are  popularly  termed.  Unfortunately, 
this  excitability  shows  itself  less  in  words  than  in  deeds;  in 
the  number  of  insults  they  do  not  stand  much  above  the 
average.  Moreover,  it  is  very  possible  that  their  boisterous 
demeanor  is  a  result  of  the  regular  use  of  alcohol,  like  the 
"fighting  lust"  of  the  Upper  Bavarians,  which,  under  the 
influence  of  Sunday  and  holiday  drinking  bouts,  has  become 
a  recognized  folk-custom. 

It  is  well  known  that,  in  spite  of  all  the  efforts  that  are 
made,  we  have  not  thoroughly  succeeded  in  ascertaining  ac- 
curately the  amount  of  local  alcohol  consumption.  It  is  quite 
conceivable  that  local  conditions  occasionally,  and  as  an  ex- 
ception, weaken  the  usual  effect  of  drinking  on  criminality, 
as,  for  instance,  when  a  scattered  population  is  less  exposed 
to  the  danger  of  friction.  In  general,  however,  in  our  own 
country,  we  may  safely  assume  a  direct  connection  between 
the  geographical  distribution  of  aggravated  assault  and  bat- 
tery and  the  custom  of  indulgence  in  alcohol. 


46  THE  SOCIAL  CAUSES  OF  CRIME  [§  4 

Such  a  connection  also  exists  in  the  case  of  assaulting  and 
resisting  an  officer,  which,  for  the  most  part,  takes  place  when 
a  policeman  arrests  a  drunkard.  But,  besides  this,  other  causal 
factors  must  be  taken  into  consideration.  Boundary  sections 
where  the  inhabitants  speak  different  languages,  industrial 
districts  where  there  is  keen,  well-founded,  or  groundless  dis- 
satisfaction among  the  workmen,  lockouts  and  strikes,  large 
cities  with  their  rowdies;  all  these  have  a  permanent  influence 
on  the  frequency  of  assaults  and  attacks  on  the  representatives 
of  government  authority.  This  is  especially  true  of  all  large 
ports,  in  which  the  refuse  of  all  the  countries  of  the  world 
comes  together.  On  shore  the  seamen,  especially  those  of 
subordinate  rank,  such  as  stokers  and  trimmers,  seek  to  make 
up  to  themselves  for  the  harsh  and  implacable  discipline  they 
experience  on  board.  In  a  few  days,  often  in  a  few  hours, 
the  entire  earnings  of  a  voyage  are  transferred,  and  find  their 
way  into  the  hands  of  saloon-keepers  and  prostitutes,  and 
intoxication  among  these  rough  crowds  leads  most  easily  to 
noisy  street  scenes.  For  this  reason  it  is  not  surprising  that  in 
Altona,  Hamburg's  great  amusement  resort,  the  number  of 
convictions,  19  per  10,000  inhabitants,  so  greatly  exceeds  the 
average  for  all  Germany,  4. 

Many  a  striking  phenomenon,  as,  for  instance,  the  frequency 
of  this  offense  in  the  district  of  Potsdam  (8.6)  as  against  Berlin 
(4.9),  is  probably  easier  for  the  inhabitants  of  the  place  to 
explain  than  for  those  who  have  no  knowledge  of  the  local 
conditions.  I  believe  that  offenses  against  officers  in  particu- 
lar are  exclusively,  or  nearly  exclusively,  owing  to  external 
causes,  among  which  I  include  the  composition  of  the  popula- 
tion that  is  due  to  occupation,  not  to  descent. 

In  the  distribution  of  petit  and  grand  larceny,  the  east 
again  strongly  predominates.  All  the  government  districts 
on  the  Russian  frontier  exceed  the  average  of  the  whole 


§4]  RACE  AND  RELIGION  47 

of  Germany  (26.9  per  10,000  persons  of  punishable  age),  in 
some  cases  by  a  large  number.  At  the  head  of  the  government 
districts  stand  Bromberg  with  62.4,  Gumbinnen  with  56.4, 
Marienwerder  with  51.6,  followed,  between  50  and  40,  by 
Danzig,  Posen,  and  Oppeln;  outside  of  the  Prussian  domains, 
more  than  forty  thefts  occur  in  Bremen  (41.6),  Schwarzburg- 
Sondershausen  (46),  and  Schwarzburg-Rudolstadt  (45.4)  only. 
In  smaller  administrative  districts  even  greater  variation  is 
noticeable;  the  district  of  Heinsberg  (Rhine  Province)  with 
4  stands  contrasted  to  Johannisburg  (East  Prussia)  with 
102.8.  Except  for  scattered  interspersions,  the  west  is  rela- 
tively free  from  theft;  the  figures  for  whole  provinces,  as,  for 
instance,  Schleswig,  Hanover,  Westphalia,  Hesse-Nassau, 
Rheinland,  the  part  of  Hesse  that  lies  on  the  right  of  the 
Rhine,  and  Alsace  and  Lorraine,  remain  below  20.  In  the 
smaller  districts,  greater  numbers  always  appear  where  in- 
dustries are  strongly  developed.  It  may  be  that  the  tempting 
opportunity  to  take  possession  of  raw  material  and  finished 
products,  as  well  as  fuel,  is  responsible  for  this.  That  explana- 
tion, however,  is  not  applicable  to  those  wide  sections  in  the 
east  that  are  mainly  agricultural  in  character.  The  majority 
of  the  day-laborers  in  the  east  live  on  a  frightfully  simple  and 
monotonous  diet,  in  miserable  dwellings,  and  work  for  in- 
significant wages.  In  the  industrial  districts  of  the  east,  too, 
wages,  even  in  proportion  to  the  lower  cost  of  food  there,  are 
much  lower  than  in  the  west.  The  economic  misery  is  un- 
doubtedly partly  to  blame  for  the  numerous  cases  of  theft  in 
the  east,  though  of  course  not  entirely.  The  conscience  of  a 
rather  unintelligent  population,  living  under  the  poorest  con- 
ditions, easily  grows  lax  as  regards  the  difference  between 
mine  and  thine;  and  when  once  the  sharp  dividing  line  between 
these  two  is  no  longer  respected,  actual  necessity  is  not  needed 
as  an  incentive  to  steal.    On  the  other  hand,  it  cannot  surprise 


48  THE  SOCIAL  CAUSES  OF  CRIME  [§  4 

us  that  the  prosperous  Westphalians  and  Rhinelanders  seldom 
lay  hands  on  others'  property — except  m  the  large  cities  and 
industrial  centres.  This  is  not  intended,  however,  to  be  an 
assertion  that  the  influence  of  Slavic  blood,  which  our  statis- 
tical department  makes  partly  responsible  for  the  high  degree 
of  criminality  in  the  east  (Vol.  CXLVI,  II,  58),  is  without 
significance.  But  before  such  influence  can  be  accepted  as  a 
fact,  it  must  be  proved  by  detailed  investigations,  and  the 
same  is  true  of  von  Rohden's  ^  opinion,  that  the  "aftermath 
of  serfdom  which  prevented  the  development  of  the  moral 
personality"  is  an  important  factor. 

A  remarkable  contrast  to  this  condition  is  presented  by  the 
geographical  distribution  of  fraud.  The  whole  of  the  east, 
which  has  been  so  heavily  burdened  with  the  crimes  just  dis- 
cussed, —  as  well  as  the  north  and  west,  —  shows  a  very  small 
number  of  convictions  for  fraud,  with  the  exception  of  theHansa 
Towns  and  Berlin.  They  mount  up,  on  the  other  hand,  in 
Saxony,  Thiiringen,  the  Palatinate,  Baden,  Wurttemberg,  and 
Bavaria.  Bremen  with  12.3,  has  more  than  double  the  aver- 
age for  all  Germany  (5.1),  and  Mannheim  (11.3)  and  Upper 
Bavaria  (11.3)  are  not  far  behind  it.  The  explanation  of  this 
phenomenon  is  very  difficult,  and  becomes  even  more  so  when 
we  go  back  to  the  small  districts.  The  maximum  (35.4)  is 
reached  in  the  city  circuit  of  Traunstein,^  the  minimum  (0.63) 
in  Liibeck  (Westphalia). 

Seuffert  ^  has  given  a  very  important  explanation  in  con- 
nection with  Traunstein.     He  shows  that,  during  the  years 

»  von  Rohden,  "Von  den  so2dalen  Motiven  des  Verbrechens"  (Zeitschrift 
fiir  Sozialwissenschaft,  VII,  523). 

2  On  the  map  the  district  of  Ulm  (Wurttemberg)  is  given  as  ha\ing  the 
maximum  16.3;  but  on  page  II,  57,  Traunstein  with  35.4  is  given  as  having 
the  highest  number.  This  discrepancy  is  owing  to  the  fact  that  on  the  map 
the  city  and  the  district  are  given  as  one. 

3  Loc.  cit.  p.  54. 


§4]  RACE  AND  RELIGION  49 

from  1883  to  1887,  it  was  thus  heavily  burdened  (42.1),  while 
its  average  from  1888  to  1892  was  only  21.2.  He  learned  that 
from  7000  to  8000  young  workmen,  especially  Austrians, 
pass  through  Traunstein  annually.  In  1883  the  practice  of 
supplying  them  with  food  ("  Natural  verpflegung")  was 
established,  but  might  only  be  made  use  of  twice  a  year. 
In  order  to  receive  this  aid  oftener,  many  of  the  youths 
altered  the  dates  on  their  papers.  In  most  cases  the  offense 
was  simply  leaving  a  public-house  without  paying  the  bill. 
Seuff ert  assumes  that  a  similar  explanation  applies  to  the  other 
Upper  Bavarian  towns,  and  concludes:  "A  large  percentage 
of  the  high  figures  for  fraud  in  Southern  Germany  should  be 
laid  at  the  doors,  not  of  the  permanent,  but  of  the  fluctuating, 
population." 

Unfortunately  I  cannot  agree  with  him  in  this  effort  to 
save  the  honor  of  the  country.  First,  because  the  "falsification 
of  journeymen's  books  and  identification  papers"  is  not 
punishable  as  fraud,  but  as  an  offense  against  §  363  of  the 
Penal  Code,  and  hence  does  not  appear  in  the  statistics. 
Secondly,  because  further  observation  has  shown  that  the 
temporary  improvement  has  not  been  maintained,  and  now, 
after  a  period  of  fifteen  years,  the  number  (35.4)  still  exceeds 
sevenfold  the  average  of  the  Empire.  Further,  because  the 
vicinity  of  Traunstein  (district  T),  where  the  falsification  of 
papers  in  order  to  obtain  provisions  from  the  town  would  be 
useless,  still  exceeds  by  ten  the  average  of  the  whole  country 
in  convictions  for  fraud.  In  any  case,  a  glance  at  the  map 
shows  us  that  the  great  predominance  of  fraud  all  over  the 
south  of  Germany  cannot  be  attributed  to  the  fluctuating 
population. 

Fraud,  too,  is  influenced  by  economic  conditions,  as  the 
heavy  increase  during  the  winter  months  proves.  But  the 
connection  between  the  two  is  not  as  close  as  it  is  in  the  case 


50  THE  SOCIAL  CAUSES  OF  CRIME  [§  4 

of  larceny.  Beurle  succeeded  in  establishing  the  fact  that, 
in  general,  89%  of  all  criminals  are  without  any  means  what- 
ever, of  the  thieves  even  94%,  while  only  0.1%  might  be  called 
prosperous.  Fraud,  however,  is  committed  by  1.4%  of  well- 
to-do  persons  and  by  only  79%  of  persons  without  means. 

I  believe  that  two  factors  are  at  the  root  of  the  geographi- 
cal distribution,  the  first  being  occupation.  In  the  country, 
fraud  is  more  difficult  than  in  the  city,  and  the  temptation 
rarer  than  in  business  life.  The  second  factor  lies  in  the  greater 
intelligence  that  the  perpetration  of  a  fraud  requires.  As  a 
rule  it  needs  much  more  intelligence,  above  all,  more  delibera- 
tion, to  swindle  a  man  than  to  steal  his  property.  Herz  ^ 
also  holds  this  view,  and  believes  that  one  of  the  causes  of  the 
preponderance  of  fraud  cases  in  the  German  jurisdictions 
over  those  in  the  Slavic  jurisdictions  (4.7  :  25  to  10,000  inhabit- 
ants) is  the  higher  degree  of  intelligence  and  education  among 
the  Germans. 

Yet  neither  the  crowding  together  of  people  in  the  city, 
and  city  occupations,  nor  greater  intelligence  alone,  affords 
an  adequate  explanation  of  the  frequency  of  fraud  in  the 
south  and  in  Saxony  and  Thiiringen.  Otherwise  the  Rhine 
Provinces  and  Westphalia  would  show  a  greater  number  of 
convictions.  Hence,  everything  compels  us  to  see  in  this 
phenomenon  a  character  trait  of  the  population  in  those 
sections  in  which  the  crime  predominates.  This  throws  a 
peculiar  light  on  the  proverbial  honesty  of  the  Swabians. 
But,  just  in  order  to  refute  the  correctness  of  this  reproach, 
which  of  course  applies  to  an  even  greater  extent  to  Bremen, 
Upper  Bavaria,  and  Mannheim,  it  would  be  desirable  to  extend 
the  statistical  examination  during  a  number  of  years,  so  that 
it  would  also  include  the  fact  whether,  in  the  case  of  fraud, 
the  birthplace  of  the  criminal,  and  the  place  where  the  crime 
*  Loc.  cit.  p.  557. 


§4]  RACE  AND  RELIGION  51 

is  committed,  differ  more  frequently  than  in  the  case  of  other 
crimes.  Further,  consideration  should  be  given  to  the  doubt 
that  Hans  Gross  ^  has  expressed,  as  to  whether  fraud  is  to  be 
regarded  as  a  psychologically  uniform  offense  at  all. 

The  results  of  a  geographical  consideration  are  meager  as 
far  as  differences  of  race  are  concerned.  Only  in  the  contrast 
between  the  frequency  of  theft  and  fraud  in  the  east  and  south 
is  it  perhaps  possible  to  see  a  sign  of  such  differences;  I  pur- 
posely say  "perhaps,"  for  no  absolutely  certain  proof  is  to  be 
found  in  the  material  at  hand.  One  thing,  however,  we  may 
definitely  assert,  that  the  possibly  existing  race  differences 
exert  an  insignificant  influence,  as  compared  with  the  powerful 
social  factors,  prosperity  and  folk-customs.  From  the  fact 
that  the  east  is  strongly  represented  in  the  whole  criminality 
of  the  country,  we  should  not  conclude  that  the  state  of  mo- 
rality there  is  low,  but  rather  that  the  economic  conditions 
are  bad. 

The  negative  result  of  the  race  investigation  is  highly  pleas- 
ing to  the  criminologist.  Race  transformation  goes  on  slowly 
for  centuries  and  can  scarcely  be  influenced  from  outside  by 
artificial  means;  whereas  we  possess  weapons  enough  against 
evil  economic  conditions  and  the  abuse  of  alcohol. 

Here  we  may  well  go  on  to  the  influence  of  religious  denom- 
ination. Religion,  as  such,  does  indeed  appear  to  be  entirely 
without  significance  in  the  criminal  statistics,  for  we  merely 
ascertain  to  which  of  the  existing  denominations  an  individual 
belongs,  but  not  whether  his  membership  is  more  than  a 
purely  nominal  one,  not  the  degree  of  his  religious  belief,  not 
the  influence  of  religious  teachings  on  his  thought  and  actions. 
It  might  almost  be  aflSrmed  that  the  commission  of  any  seri- 
ous crime  is  a  proof  that  the  perpetrator  has  lost  his  touch 
with  his  religion. 

'  Loc.  cit.  p.  371. 


52  THE  SOCIAL  CAUSES  OF  CRIME  [§  4 

But,  if  we  examine  the  statistics,  we  are  confronted  by  dif- 
ferences of  such  magnitude  that  we  are  not  justified  in  passing 
them  over  in  silence.  Especially  is  this  true  because,  in  the 
quarrels  among  the  denominations,  the  kind  and  number  of 
convictions  are  quoted  to  show  the  inferiority  of  the  opposing 
sect.^ 

During  the  years  1892-1901,  the  average  number  of  persons 
convicted  per  100,000  civilians  of  the  same  faith  was: 

TABLE  IX 

1122  Evangelical  Christians 
1361  Catholic  Christians 
1030  Jews 

The  criminality  of  the  Jews,  with  the  exception  of  Group  I 
in  the  statistics  (crimes  and  offenses  against  the  State,  public 
order,  and  religion),  is  far  below  that  of  the  Christians. 
Their  predominance  in  Group  I  is  mainly  due  to  the  large 
number  of  convictions  among  them  for  transgressing  against 
the  Lord's  Day  law. 

If  we  regard  the  offenses  separately,  we  find  that,  for  every 
100  cases  of  usury  in  which  Christians  are  the  offenders,  there 
are  1300  such  offenses  committed  by  Jews  in  proportion  to  the 
number  of  members  of  every  denomination.  In  considering 
this  fact,  two  things  must  not  be  forgotten:  first,  that  con- 
victions for  usury  are  very  rare.  During  the  period  covered  by 
the  report,  the  average  annual  number  of  Jews  convicted  of 
this  offense  was  5.  Such  small  figures  easily  lead  our  judgment 

1  An  anonymous  pamphlet  ("Die  konfessionelle  Kriminalstatistik  in  Wiirt- 
temberg,"  Halle,  Eugen  Strien,  1886,  with  the  motto,  "By  their  fruits  ye 
shall  know  them")  contains  the  following  sentence  (p.  32):  "In  contrast  to 
the  complaints  of  the  Protestants  of  decrease  in  church  attendance,  indiflFer- 
ence,  and  lukewarmness,  we  see  in  the  Catholic  chiu'ch  in  the  last  forty  years 
an  unequalled  growth  of  church  life  and  —  unfavorable  moral  results." 


§4]  RACE  AND  RELIGION  53 

astray.  It  is  true  that  the  small  number  is  so  constant  that 
we  cannot  deny  it  every  significance.  Secondly,  we  must 
take  into  account  the  fact  that  usury  is  a  specific  offense  of 
trade.  From  1885  to  1889  60%  of  all  the  persons  convicted  of 
usury  were  engaged  in  trade  and  commercial  pursuits.  Accord- 
ing to  the  last  statistics  of  occupation,  of  the  year  1895,  among 
100  Jews  engaged  in  gainful  occupations,  54.56  were  engaged 
in  commercial  pursuits,  as  against  9.64  of  the  entire  population; 
that  is,  nearly  six  times  as  many  as  the  proportion  of  Jews  in 
the  population  would  lead  us  to  expect.  Hence,  we  should 
compare  not  the  number  of  Jews  and  Christians  that  are  con- 
victed of  usury,  but  the  number  of  commercially  occupied 
Jews  and  Christians.  This  results  in  a  considerable  decrease 
in  the  predominance  of  the  former,  though  the  Jews  still 
remain  in  the  majority.  It  would  be  a  mistake  to  draw  any 
far-reaching  conclusion  from  these  facts,  if  for  no  other  reason 
than  merely  because  most  of  the  cases  of  usury  do  not  come 
before  the  courts  at  all,  so  that  the  small  number  of  convic- 
tions is  entirely  misleading. 

The  same  considerations  apply  to  all  those  crimes  the  nature 
of  which  makes  their  accomplishment  almost  impossible  ex- 
cept by  those  engaged  in  commercial  occupations  in  the  widest 
sense,  such  as  simple  and  fraudulent  bankruptcy,  and  offenses 
against  §  147  of  the  trade  regulations.  How  necessary  it  is 
to  take  the  occupation  into  account,  is  shown  by  a  considera- 
tion of  the  kingdom  of  Saxony.  In  1891, 14.9%  of  all  the  fraud- 
ulent bankruptcies,  and  23%  of  all  the  convictions  for  usury, 
occurred  in  that  realm,  whereas  the  percentage  corresponding 
to  the  number  of  inhabitants  would  have  been  7.07.  The 
explanation  of  this  lies  in  the  occupations  predominating  in 
Saxony;  of  1000  gainfully  employed  persons  in  1895,  122  were 
engaged  in  trade.  It  may  be  said  in  passing  that  the  percent- 
age of  Jews  in  Saxony  is  only  0.27. 


54 


THE  SOCIAL  CAUSES  OF  CRIME 


[§4 


TABLE  XI 


Cbimes  and  Offenses  against  National  Laws 
(Except  Avoidance  of  Militaby  Sebvice 
§  140  OF  THE  Penal  Code) 


1.  All  crimes  and  ofiFenses  against  nat.  laws 

2.  Crimes  and  ofiFenses  against  the  State, 

public  order,  and  religion 

3.  Crimes  and  ofiFenses  against  the  person  . 

4.  Crimes  and  ofiFenses  against  property     . 

5.  Resisting  an  oflBcer,  etc 

6.  Breach  of  the  peace 

7.  Violating  the  Lord's  Day  regulations   . 

8.  Perjury 

9.  Rape 

10.  Insult      

11.  Aggravated  assault  and  battery     .    .    . 

12.  Petit  larceny,  also  when  repeated     .    . 

13.  Grand  larceny,  also  when  repeated  .    . 

14.  Embezzlement 

15.  Receiving  stolen  goods 

16.  Fraud 

17.  Fraudulent  bankruptcy 

18.  Simple  bankruptcy 

19.  Malicious  mischief 


Convicted  Pebsons  1892-1901  peb 
100,000  Civilians  of  the  Saue 
Religious  Denomination 


Evangel-      Catholic         Jewish 

ICAL 


1122 

169 
461 
489 
41.9 
55.1 
21.4 
2.1 
11.1 
140.4 
185.5 
218.6 
32.1 
63.2 
19.84 
46.3 
0.41 
1.8 
42.7 


1361 

164 
634 
659 
48.1 
69.7 
13.4 
2.1 
13.0 
148.1 
314.1 
264.1 
36.2 
51.5 
23.47 
51.8 
0.27 
1.3 
66.1 


1030 

234 

382 

410 
13.3 
32.5 

125.6 
3.4 
9.4 

199.9 
75.3 
80.0 
10.3 
48.0 
16.49 
94.2 
3.2 
26.3 
11.3 


The  number  of  Jews  convicted  of  dueling  is  striking  — 
three  and  a  half  times  greater  than  it  should  be.  According 
to  Cron,^  5.4%  of  the  students  at  the  universities  in  Baden, 
from  1889  to  1893,  were  Jews,  while  they  constitute  only 
1.6%  of  the  population.  Hence,  the  number  of  them  that  are 
convicted  of  dueling  is  explained  by  the  large  percentage  in  the 
student  body,  and  perhaps  also  by  the  greater  frequency  of 
serious  conflicts  to  which  their  faith  exposes  them.  All  duels 
in  which  officers  of  the  reserve  are  concerned  are  not  included, 
as  they  are  dealt  with  by  court-martial.     This  also  brings 

1  "Statistik  des  Deutschen  Reiches,"  N.  F.  LXIV,  II,  p.  35,  and 
CXLVI,  II,  p.  60. 

2  Ludu-ig  Cron,  "Der  Zugang  der  Badener  zu  den  badischen  Universitaten 
1869-1893,"  J.  D.  Heidelberg,  1897. 


§4]  RACE  AND  RELIGION  55 

about  an  artificial  increase  in  the  percentage  of  Jews  as  com- 
pared with  that  of  Christians. 

Occupation  does  not,  however,  explain  the  high  number  of 
sentences  for  insult,  which  is  still  more  remarkable  when  we 
consider  how  little  the  Jews  are  inclined  to  intemperance, 
one  of  the  commonest  causes  of  this  offense.  How  often  the 
insult  is  only  the  reaction  from  former  irritations  cannot  be 
determined,  but,  whereas,  in  regard  to  the  other  offenses 
mentioned,  I  believe  that  the  influence  of  a  race  peculiarity 
is  inadequately  proved,  in  this  instance  it  seems  to  me  possible 
that  a  connection  exists  between  the  offense  and  racial  descent. 
The  vivacity  that  expresses  itself  in  gesticulation,  talkative- 
ness, loud  speech,  and  excitability  is,  as  we  know,  much  greater 
in  the  south  than  in  the  north;  perhaps  the  large  number  of 
insults  may  be  explained  by  the  relationship  with  southern 
peoples,  but  of  course  this  supposition,  too,  can  hardly  be 
proved. 

The  same  view  of  the  importance  of  occupation  appears  in 
our  government  criminal  statistics:  "The  high  number  of 
convictions  of  Jews  for  a  series  of  punishable  offenses  is  closely 
related  to  their  preference  for  commercial  occupations.^ 
But  even  if  we  take  their  occupation  fully  into  consideration, 
in  certain  crimes,  above  all  in  simple  and  fraudulent  bank- 
ruptcy, the  number  of  convictions  of  Jews  considerably  exceeds 
that  of  Christians  (1892-1901:  26.3:1.6  and  32:0.36  per 
100,000  persons  of  the  same  faith).  The  unfavorable  light 
thus  thrown  on  the  business  conduct  of  many  Jews  is  improved 
by  the  fact  that  the  number  of  convicted  Jews  is  constantly 
decreasing. 

This  is  not  true,  however,  in  respect  to  a  few  other  crimes 
and  offenses,  chief  among  which  are  fraud,  suppression  and 
forgery  of  public  documents,  adulteration  of  food.  Here, 
1  "Statistik  des  Deutschen  Reiches."  N.  F.  CXLVI,  II.  p.  59. 


56  THE  SOCIAL  CAUSES  OF  CRIME  [§  4 

too,  occupation  may  have  a  decisive  influence,  but,  in  any 
case,  one  thing  cannot  fail  of  recognition,  that  the  offenses  of 
which  a  larger  number  of  Jews  are  convicted  than  their  pro- 
portion to  the  total  population  would  lead  one  to  expect, 
belong  to  those  crimes  that  are  committed  for  personal, 
usually  material,  gain,  and  that  the  explanation  is  found 
partly,  if  not  entirely,  in  the  occupation  of  these  people. 

The  Jews,  as  has  been  mentioned,  are  not  to  any  extent 
habitual  frequenters  of  public-houses,  nor  do  they  drink  to 
excess.  Whether  this  restraint  is  due  to  their  descent  or  to  the 
effect  of  the  voluntary  and  involuntary  social  seclusion  that 
they  have  undergone,  may  remain  undecided.  Certain  it  is 
that  this  factor  has  the  most  favorable  influence  possible  in  the 
prevention  of  crime.  The  number  of  Jews  concerned  in  cases 
of  aggravated  assault  and  battery  is  only  one-third  of  what 
might  be  expected,  and,  as  this  crime  is  almost  exclusively 
the  consequence  of  alcoholic  excesses,  the  favorable  result 
is  but  natural. 

In  general,  members  of  small  religious  communities  or  of  a 
scattered  race  that  is  surrounded  by  other  races  are  less  in- 
clined to  deviate  from  the  straight  way.  This  is,  in  part, 
the  effect  of  the  greater  attention  that  is  paid  to  the  whole 
conduct  of  life.  Every  crime  committed  by  an  individual  in  a 
singularly  exposed  circle  or  community  is  more  striking  and 
immediately  leads  to  generalization.  We  all  know,  for  in- 
stance, how  the  immoral  offenses  of  a  Catholic  priest,  fraud 
committed  by  a  nobleman,  the  brutality  of  an  army  oflBcer, 
are  seized  on  by  all  opposing  parties,  stripped  of  their  char- 
acter as  being  independent  of  occupation  and  descent,  and  are 
represented  as  typical. 

This  sharp  criticism  has  its  great  advantages.  In  Prussia, 
for  instance,  between  1862  and  1864,  3.58%  of  the  births 
among  the  Jews  were  illegitimate,  among  certain  sects  (Men- 


§4]  RACE  AND  RELIGION  57 

nonites,  etc.)  3.29%,  as  against  10%  among  the  rest  of  the 
population.  In  Austria,  according  to  Korosi,  3.2%  illegiti- 
mate Jewish  children  were  born,  as  against  37.89%  Catholic 
children;  in  Vienna  from  1874  to  1878  there  were  11.8% 
Jewish,  23.1%  Protestant,  and  44.2%  Catholic,  illegitimate 
births.  The  figures  in  Russia  were  similarly  divided:  3.06% 
in  the  Greek  Church,  0.22%  among  the  Jews,  0.16%  among 
the  Mohammedans. 

This  somewhat  artificial  raising  of  the  moral  plane  is  partly 
due  to  favorable  external  conditions;  the  closeness  of  union  in 
such  communities  naturally  leads  to  a  much  better  developed 
system  of  mutual  aid  in  poverty.  This,  together  with  the 
greater  average  prosperity  of  the  Jews,  explains  the  low 
percentage  of  thefts  among  them;  in  cases  of  petit  larceny 
they  are  more  than  three-fourths,  in  cases  of  grand  larceny 
about  two-thirds,  behind  the  Christians,  and  the  same  rela- 
tive position  may  be  observed  in  some  other  offenses  against 
property. 

Respect  for  the  family  and  for  the  sacredness  of  marriage 
has  a  direct  and  noticeably  favorable  effect  on  criminality, 
as  is  shown  by  the  fact  that  convictions  for  bigamy,  for  the 
abuse  of  a  relationship  of  trust  to  commit  an  offense  against 
chastity  ("Unzucht  unter  Missbrauch  eines  Vertrauensver- 
haltnisses"),  infanticide,  abandonment,  never  occur  among 
these  people,  and  that  convictions  for  incest  are  extremely 
rare.  In  all  the  remaining  crimes,  low  criminality,  or  its 
absence  altogether,  may  be  regarded  as  due  to  the  advanta- 
geous economic  condition  that  has  already  been  discussed. 

The  same  reasons,  but  probably  strengthened  by  the  fa- 
natical religiousness  which  is  generally  so  highly  developed 
among  sectarians,  are  responsible  for  the  rarity  of  convic- 
tions in  the  group  classified  as  "other  Christians,"  in  which 
the  government  statistics,  oddly  enough,  have  included,  be- 


58  THE  SOCIAL  CAUSES  OF  CRIME  [§  4 

sides  the  Mennonites,  Baptists,  etc.,  also  the  "Dissenters" 
("  Dissidenten  ") .  In  the  latest  compilation  no  special  infor- 
mation about  this  group  is  given. 

It  is  very  diflScult  to  explain  the  great  predominance  of  the 
Catholics  over  the  Protestants  in  crime  (Table  X).  An 
average  for  ten  years  shows  their  relation  to  be  1361 :  1122; 
in  the  main  groups  the  Protestants  predominate  only  in 
Group  I  (169 :  164) ;  among  the  more  important  of  the  sub- 
divisions they  are  in  the  majority  in  embezzlement,  53.2  :  51.5, 
and  in  bankruptcy.  In  considering  these  wide  variations,  a 
connection  between  them  and  the  geographical  distribution 
immediately  suggests  itself.  Von  Scheel  considers  the  ques- 
tion of  religion  superfluous,  and  explains  the  variations  by  the 
fact  that  in  Northwestern  and  Central  Germany,  where  the 
Protestant  faith  predominates,  the  inhabitants  are  of  more 
phlegmatic  temperament  and,  to  some  extent,  more  prosper- 
ous, while  the  Catholic  sections  embrace  the  uncultivated 
districts  of  Eastern  Germany.  In  the  most  recently  published 
government  statistics  ^  relating  to  religion,  it  is  stated:  "The 
fact  that  criminality  among  Catholics  is  greater  is  largely  due 
to  the  preponderance  of  Catholicism  in  those  districts  of  the 
Empire  lying  on  its  eastern  border,  which  are  partly  inhabited 
by  a  Slavic  population  and  are  culturally  not  so  highly 
developed,  and  where  the  greatest  number  of  convictions 
occurs." 

But  this  is  not  entirely  correct.  In  the  eastern  provinces 
(Eastern  Prussia,  Posen,  and  Silesia),  where  the  criminality 
is  so  high,  there  are  about  one  and  a  half  million  Catholics, 
whereas  in  the  cultivated  provinces  of  the  Rhine  and  West- 
phalia there  are  nearly  two  millions.  In  Eastern  Prussia,  in 
fact,  only  13.5%  of  the  inhabitants  are  Catholics.  It  would 
also  be  a  mistake,  without  further  research,  to  hold  the  Slavs 
1  "Statistik  des  Deutschen  Reiches,"  CLXTV,  II,  p.  58. 


§4]  RACE  AND  RELIGION  59 

in  the  east  responsible,  their  inclination  towards  crime  being 
as  yet  hardly  established. 

Those  districts  in  which  the  religious  denominations  are 
mixed  should  afford  us  a  better  insight.  The  government 
criminal  statistics  ^  give  us  a  comparison  of  25  sections  in 
which  at  least  one-quarter  of  the  population  was  either  Evan- 
gelical or  Catholic.  Among  these  the  criminality  of  the  Evan- 
gelicals exceeded  that  of  the  Catholics,  per  100,000  inhabitants 
of  the  same  faith,  by  5  in  the  Danube  Circuit,  6  in  Minden,  10 
in  Heidelberg,  30  in  Osnobruck,  36  in  Offenburg,  and  86  in 
Karlsruhe,  —  six  districts  altogether,  in  which  there  were, 
on  an  average,  28  more  convictions,  with  a  total  average  for 
the  whole  of  Germany  of  1031. 

On  the  other  hand,  in  the  following  nineteen  circuits  with 
mixed  populations  the  Catholics  committed,  on  an  average, 
150  more  crimes  than  their  share:  Schwarzwald  Circuit  (49), 
Mosbach  (27),  Arnsberg  (36),  Coblenz  (37),  Rheinhessen  (59), 
Dusseldorf  (88),  Danzig  (89),  Marienwerder  (100),  the  Pa- 
latinate (120),  Jagst  Circuit  (122),  Starkenburg  (143),  Lower 
Alsace  (166),  Breslau  (184),  Wiesbaden  (184),  Oberfranken 
(212),  Mannheim  (230),  Lorrach  (232),  Bromberg  (361), 
Posen  (423). 

The  variation  being  as  great  as  this,  we  cannot  omit  to  search 
for  the  cause.  Auricular  confession  is  frequently  held  respon- 
sible, but  it  is  a  question  whether  there  is  any  justification  for 
this  opinion.  Persons  of  inferior  mentality  and  confused 
minds  may,  indeed,  consider  that  the  performance  of  a  pen- 
ance imposed  by  the  Church  lessens  their  responsibility  to  the 
State.  This  view  undoubtedly  does  exist,  but  it  would  scarcely 
be  possible  to  calculate  its  frequency  and  significance.  It 
need  not  be  said  that  such  a  misunderstanding  of  an  institu- 
tion that  is  of  so  great  importance  in  the  Catholic  Church  is 
1  N.  F.  LXIV,  II,  36. 


60  THE  SOCIAL  CAUSES  OF  CRIME  [§  4 

not  to  be  laid  at  its  doors.  I  know  several  cases  in  which 
confession  led  to  crimes  being  made  good,  either  by  the  restora- 
tion of  stolen  property  or  by  the  criminal's  giving  himself  up 
to  justice.  The  frequency  of  such  occurrences  cannot  be  given 
in  figures,  but  of  one  thing  we  may  be  certain,  that  confession 
in  itself  is  much  more  calculated  to  repress  than  to  further 
criminal  tendencies. 

Another  fact,  however,  decidedly  deserves  consideration, 
that  the  material  circumstances  of  Catholics  in  general  are 
less  prosperous  than  those  of  Protestants.  I  have  no  knowledge 
of  any  accurate  investigation  that  proves  this  fact  throughout 
Germany,  but  in  a  small  portion  of  the  Empire,  in  Baden, 
the  whole  question  has  been  most  carefully  studied.  Martin 
Ofifenbacher  ^  has  been  able  to  prove  that,  with  few  excep- 
tions, the  Protestants  in  Baden  fill  the  more  remunerative 
positions  in  all  occupations.  In  agriculture,  for  instance,  in 
which  more  Catholics  than  Protestants  are  engaged,  the 
lucrative  branch  of  supplying  good  markets  with  milk,  vege- 
tables, and  fruit  is  largely  in  the  hands  of  the  latter.  In 
industrial  pursuits,  the  majority  of  the  more  independent  work- 
men are  Protestants;  for  instance,  the  art-craftsmen,  composi- 
tors, printers,  and  photographers.  In  1895  the  income  tax  per 
1000  Catholics  amounted  to  589.800,  per  1000  Protestants  to 
954.900,  marks. 

To  generalize  from  the  conditions  in  Baden  for  the  whole 
of  Germany  is  permissible  to  a  certain  extent,  for  it  is  known 
that  the  student  bodies  in  Bavaria,  Wurttemberg,  and  Prussia 
show  the  same  phenomenon  that  is  seen  in  Baden.  Every- 
where a  relatively  small  number  of  Catholics  is  found  in  the 
"Realschulen"  and  "Realgymnasien,"  a  somewhat  larger 
number  in   the   "Gymnasien"    (students   of  theology),   but 

1  Martin  Offenbacher,  "Konfession  und  soziale  Schichtung,"  J.  C.  B.  Mohr, 
Tubingen  und  Leipzig,  1900. 


§  5]  CITY  AND  COUNTRY;  OCCUPATION  61 

always  a  smaller  proportion  of  Catholics  than  we  should 
expect. 

This  fact,  an  enquiry  into  the  cause  of  which  does  not  lie 
within  the  limits  of  this  work,  assigns  to  the  Catholics  a  lower 
place  in  the  social  and  therefore,  also,  usually  in  the  economic 
scale.  With  the  close  connection  that  exists  between  economic 
position  and  crime,  this  proportion  brings  with  it  the  danger 
of  coming  into  conflict  with  the  law.  Less  importance  should 
be  attached,  in  my  opinion,  to  the  lack  of  higher  education, 
for  too  little  is  known  as  yet  of  its  influence  on  criminality. 

I  must  be  content  to  point  to  the  possibility  of  a  connection 
between  the  greater  criminal  inclination  of  the  Catholics  and 
their  social  condition;  in  view  of  the  importance  of  the  fact 
itself,  further  investigation  of  its  causes  is  essential.  It  is 
certainly  fitting,  however,  to  emphasize  that,  the  cause  still 
being  doubtful,  we  are  not  justified  in  using  the  higher  or  lower 
criminality  of  members  of  any  faith  as  a  weapon  against  them, 
or,  worse  still,  like  the  anonymous  writer  mentioned  on  page 
52,  to  assume  that  "criminal  statistics  show  the  intrin- 
sic moral  value  of  the  various  faiths  in  a  really  remarkable 
manner." 

The  government  statistical  report  is  right  in  closing  its 
consideration  of  the  connection  between  religion  and  crime 
with  the  following  words:  ^  "We  cannot  issue  too  strong  a 
warning  against  the  use  of  the  data  for  or  against  this  or 
that  faith,  to  show  that  its  effect  on  criminality  is  proved." 

§  5.  City  and  Country ;  Occupation 

According  to  von  Oettingen,^  the  relation  of  the  urban  to 

the  rural  population  in  Italy  was  32 :  68,  but  in  criminality 

they  approach  each  other,  and  the  relation  is  43  :  57.    Condi- 

1  "Statistik  des  Deutschen  Reiches,"  LXIX,  II,  37. 
*  von  Oetiingen,  loc.  cit.  p.  499. 


62 


THE  SOCIAL  CAUSES  OF  CRIME 


[§5 


tions  are  similar  in  France,  where  the  urban  and  rural  inhab- 
itants were  responsible  for  approximately  the  same  number 
of  crimes;  but  the  urban  inhabitants  constitute  only  about 
30%  of  the  whole  population.  In  Germany,  in  the  cities  and 
districts  with  more  than  20,000  inhabitants  there  are  134.2 
delinquents  per  100,000  adults;  in  the  rural  districts  only 
96.6.  But  it  would  be  erroneous  to  conclude  from  this  that 
morality  and  virtue  are  deeper  rooted  among  the  peasants 
than  among  the  dwellers  in  cities.  For  good  reasons  the  large 
city  strongly  attracts  criminals  and  loafers,  who  find  there  a 
better  field  for  their  labors,  companionship  with  congenial 
spirits,  and  more  opportunity  to  keep  themselves  and  their 
booty  out  of  sight.  The  pleasures  of  the  city  are  also  enticing, 
and  it  is  just  these  pleasures  that  offer  themselves  daily  in  all 
possible  forms,  chief  among  which  are  prostitution  and  alco- 
hol, that  are  fraught  with  danger  to  the  man  of  weak  character. 
He  succumbs  much  more  easily  in  the  complicated  life  of  the 
city  than  under  simple  rural  conditions,  to  the  temptation  to 
steal.  If,  in  addition,  he  becomes  intimate  with  reckless 
companions,  or,  worse,  falls  into  the  hands  of  old  prison  veter- 
ans, the  first  step  in  a  career  of  crime  is  soon  taken. 

A  summary  of  the  years  1883-1893  in  Germany  ^  gives  the 
following  differences  per  10,000  urban  and  rural  inhabitants: 


TABLE   XI 


Place 

All 
Cbimes 

Resist- 
ing 
Offi- 

CEBS 

Aggra- 
vated 
Assault 

AND 

Battebt 

Theft 

Fraud 

Aggregate  of  33  cities  and  districts  with 
more  than  20,000  inhabitants      .    .    . 

Remaining  territory,  chiefly  rural,  of 
the  corresponding  higher  administra- 
tive districts 

134.2 
96.6 

7.4 
3.2 

12.3 
16.7 

37.8 
27.3 

8.1 
3.8 

1  "Statistik  des  Deutschen  Reiches,"  N.  F.  LXXVII,  II,  28. 


§  5]  CITY  AND  COUNTRY;  OCCUPATION  63 

Offenses  against  property,  especially  fraud,  predominate  in 
the  city;  the  numbers  of  procurers,  and  of  workmen  without 
steady  employment,  whom  I  shall  try  to  characterize  more 
fully  later,  in  short,  the  whole  tribe  that  constantly  lives  with 
one  foot  on  the  threshold  of  the  penitentiary,  clearly  appears 
in  the  frequency  of  resistance  to  the  authority  of  the  State. 
In  the  country,  on  the  other  hand,  the  drinking  that  goes  on 
on  Sunday  ends  in  a  brawl,  in  which  knives  play  their  part; 
hence  the  larger  number  of  cases  of  aggravated  assault  and 
battery.  But  there  is  also  great  variation  in  this  respect. 
In  the  part  of  Bavaria  that  lies  on  the  right  of  the  Rhine 
there  are  more  cases  of  such  assault  and  battery  in  the  country 
districts,  while  in  Rhineland  the  majority  of  such  cases  occur 
in  the  towns. ^ 

In  trying  to  find  the  reasons  for  these  variations  between 
the  city  and  the  country,  we  must  proceed  with  great  caution. 
Yvernes,^  for  instance,  established  the  fact  that  75%  of  all 
infanticides  were  committed  in  the  country,  and  60%  of  all 
criminal  abortions  in  the  city.  But  these  are  not  criminal 
psychological  difiFerences  that  might  be  used  in  characterizing 
the  population.  They  are  merely  differences  in  technique,  if 
I  may  so  express  it.  Unmarried  pregnant  girls  in  the  city 
easily  find  an  experienced  friend  or  unscrupulous  midwife  to 
help  them;  the  newspapers  teem  with  advertisements  offer- 
ing "advice  in  confidential  cases."  The  peasant  girl  resorts 
to  the  use  of  internal,  and,  generally,  ineffective,  doses,  to 
procure  abortion,  but  so  seldom  with  success  that  such  cases 
rarely  reach  the  ears  of  the  authorities.  But  if  she  makes 
away  with  the  infant  after  it  is  born,  she  seldom  escapes  prose- 
cution and  conviction;  in  the  city  it  is  more  convenient  and 
less  risky  to  let  the  "  baby  farmer  "  attend  to  the  ghastly  task. 

»  Prinzing,  "Soziale  Faktoren  der  Kriminalitat"  (ZStW.  XXII,  150). 
«  Cited  by  Foldes  (ZStW.  XI,  528). 


64  THE  SOCIAL  CAUSES  OF  CRIME  [§  5 

The  connection  is  not  always  so  transparent.  The  variations 
found  in  different  localities  often  cannot  be  explained  till  the 
occupation  is  taken  into  account.  There  is  no  doubt  that  the 
latter  has  considerable  influence  on  the  kind  of  offense  com- 
mitted. Apart  from  superficial  connections  between  the  two, 
a  close  relation  is  brought  about  by  the  fact  that  an  individual's 
inclination  and  talents  influence  his  choice  of  a  profession.  It 
requires  a  robuster  constitution  to  be  a  butcher  than  to  be  a 
tailor  or  waiter;  the  individual  of  inferior  intelligence  will 
never  rise  above  the  grade  of  the  unskilled  laborer.  Still 
greater  interest  is  claimed  by  the  well-known  fact  that,  among 
impersonators  of  women  on  the  stage,  among  waiters  and 
ladies'  tailors,  there  are  many  men  with  perverted  sexual  in- 
stincts, who  have  doubtless  been  influenced  in  their  choice  of 
occupation  by  the  abnormal  suggestions  connected  with  these 
kinds  of  employment.  It  is  to  be  regretted  that  so  far  not 
much  study  has  been  devoted  to  the  psychology  of  occupation. 
For  this  reason  the  government  statistics  do  not  enter  a 
laborious,  and  at  present  vain,  consideration  of  the  different 
professions,  but  deal  only  with  the  large  groups  of  occupations. 

In  Table  XII  the  number  of  adults  in  each  of  these  groups 
is  given,  and  the  share  that  each  group  has  in  criminality  as 
a  whole,  as  well  as  in  certain  of  the  more  important  crimes. 
The  group  that  includes  agriculture,  forestry,  hunting,  and 
fishing  is  strongly  represented  in  the  crimes  of  arson,  perjury, 
and  aggravated  assault  and  battery.  The  suspicion  that  in 
most  cases  of  arson  the  motive  is  the  desire  to  obtain  the  in- 
surance is  refuted  by  the  statistics.  Occasionally,  it  is  true, 
a  peasant  whose  circumstances  have  deteriorated  resorts  to 
this  method  of  getting  a  fresh  start,  but,  in  comparison  with 
other  occupations,  such  cases  are  rare.  Most  cases  of  in- 
cendiarism are  due  to  revenge  on  the  part  of  employees,  that 
is  through  farm  laborers,  dairy  maids,  etc.     Anger  at  being 


§5]  CITY  AND  COUNTRY;  OCCUPATION  65 

scolded  gives  the  impulse,  and  the  tempting  quantities  of  hay, 
straw,  and  grain  afford  the  favorable  opportunity. 

Only  as  regards  perjury  does  the  number  of  independent 
farmers  who  are  convicted  exceed  that  of  the  employees;  all 
the  other  offenses  are  committed  chiefly  by  the  laborers  and 
maids. 

The  commonest  crime  of  the  industrial  population  is  the 
offering  of  resistance  to  an  officer.  Nearly  half  of  all  the  convic- 
tions for  this  offense  fall  to  the  share  of  workmen  in  factories, 
mines,  and  the  building  trades,  who  constitute  approximately 
one-sixth  of  the  total  population.  The  reason  probably  lies 
in  the  large  number  of  youthful  factory  workers  employed. 
The  effect  on  these  immature  youths  of  independence  and  of 
the  liberty  to  dispose  of  their  weekly  wages  as  they  wish,  is 
most  unfavorable.  In  their  self-conceit  they  look  upon  them- 
selves, when  they  resist  the  subordinate  representatives  of 
the  government,  as  heroes. 

The  immaturity  of  the  workmen  is  also  to  blame  for  the  fact 
that  the  industrial  group  is  so  largely  represented  in  offenses 
against  chastity;  the  saloon  is  responsible  for  the  many  cases 
of  aggravated  assault  and  battery. 

The  specific  crime  of  the  commercial  class,  which  includes 
also  hotel-keepers,  is  usury.  To  100  adults  of  the  total  popula- 
tion there  were  2.3  independent  landlords,  who  were  responsi- 
ble for  59.8%  of  all  the  cases  of  usury.  The  prosperous  con- 
dition of  many  tradesmen  makes  it  easier  for  them  to  lend 
money  than  for  men  in  other  occupations;  the  figures  would 
also  perhaps  justify  the  conclusion,  that  many  a  usurer  merely 
uses  trade  as  a  blind  in  order  to  cover  his  dubious  business. 

The  criminality  of  the  fourth  group  is  much  below  its  pro- 
portion of  the  whole  population;  it  includes,  besides  public 
employees  and  those  in  the  service  of  the  courts,  the  so-called 
independent  professional  men  (physicians,  teachers,  lawyers, 


66 


THE  SOCIAL  CAUSES  OF  CREViE 


[§5 


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§5]  CITY  AND  COUNTRY;  OCCUPATION  67 

etc.).  Their  social  position  and  economic  condition,  descent, 
and  education,  form  a  powerful  protection  against  the  temp- 
tation to  crime  —  but,  unfortunately,  not  an  adequate  one. 
The  figures  for  usury  and  fraud  equal,  those  of  sexual  crimes 
exceed,  the  figures  showing  the  proportion  of  this  group  to  the 
whole  population. 

In  1889  a  special  census  was  taken  of  some  of  the  independ- 
ent professions;  the  result  showed  that,  per  10,000  higher 
court  officers,  there  were  3.5  convictions;  to  the  same  number 
of  lawyers,  56;  of  physicians,  70;  of  teachers,  29.5.  The  total 
number  of  convictions  was  rather  small ;  in  all  only  three  higher 
officers  of  justice  were  convicted.  Nearly  half  of  the  convic- 
tions among  the  lawyers,  and  more  than  half  among  the  phy- 
sicians, were  for  insult;  among  the  teachers  one-third  of  the 
convictions  were  for  the  same  offense,  one-sixth  for  assault  and 
battery  committed  in  office  (" Korperverletzungen  im  Amte"), 
one-eighth  for  sexual  crimes.  Of  the  58  convicted  ecclesiastics, 
23  were  sentenced  for  insult,  11  for  defamation.  All  in  all, 
the  short  period  of  one  year  during  which  these  observations 
were  made  does  not  permit  us  to  attach  any  particular  sig- 
nificance to  the  figures.  The  data  concerning  the  criminality 
of  students  are  more  valuable  and  will  be  dealt  with  later. 

The  number  of  convictions  among  servants  is  very  small, 
Rykere's  assertion  to  the  contrary.  Their  commonest  crime 
is  theft,  but  even  of  this  offense  they  do  not  commit  more 
than  their  share.  The  large  number  of  thefts  is  partly  due 
to  the  temptation  that  daily  confronts  these  people,  who  for 
the  most  part  are  still  quite  young.  As,  notwithstanding,  the 
status  of  crime  among  servants  is  so  favorable,  we  shall  prob- 
ably not  err  in  attributing  this  to  their  being  so  well  provided 
for.  They  have  sufficient  food,  comfortable  shelter,  suitable 
clothing,  and  so  are  not  exposed  to  absolute  need. 

The  group,  "without  occupation,  and  with  no  occupation 


68  THE  SOCIAL  CAUSES  OF  CRIME  [§  5 

given"  is  composed  of  many  elements.  To  it  belong  the  in- 
mates of  various  institutions,  who  usually  have  little  or  no 
opportunity  to  commit  crimes,  students,  persons  living  on 
their  incomes,  and  those  who  are  supported  by  others;  also 
those  who,  though  employed  in  some  way,  failed  to  give  their 
occupation.  We  shall  not  go  far  astray  in  assuming  that  some 
professional  criminals  are  numbered  among  the  latter;  this 
view  is  supported  by  the  high  percentage  of  usurers. 

Finally,  a  seventh  group  is  made  up  of  "workmen  who  have 
not  given  the  nature  of  their  employment,"  constituting  1% 
of  the  population,  but  responsible  for  10%  of  the  crimes  com- 
mitted. The  figures  showing  the  percentage  of  convictions 
for  receiving  stolen  goods  (14.4),  larceny  (l5.),  embezzlement 
(12.7),  resisting  an  officer  (15,8),  ofiPenses  against  chastity 
(8.9),  perjury  (7.9),  are  sufficient  to  indicate  what  dangerous 
characters  are  hidden  beneath  this  apparently  harmless  desig- 
nation. The  supposition  that  we  mentioned  in  connection 
with  the  group,  "persons  without  occupation,"  is  even  more 
justified  in  respect  to  this  group.  Those  workmen  are  prob- 
ably also  included  who,  owing  to  physical  or  mental  defects,  are 
unable  to  find  permanent  employment  either  in  industrial  or 
agricultural  life;  but  most  of  the  group  undoubtedly  do  not 
deserve  the  honest  name  of  "workmen."  Indeed,  in  1903,  of 
3836  convictions  for  inducing  women  to  prostitution,  590  fell 
to  the  share  of  these  "workmen,"  who  make  up  1%  of  the 
population!  In  the  criminal  statistics  it  is  very  properly 
stated  ^  that  many  persons  who  are  not  working  are  included 
in  the  census  as  "workmen,"  a  misnomer  that  is  not  to  the 
advantage  of  the  real  workmen  and  is  most  unfitting. 

As  has  already  been  mentioned,  special  statistics  of  the 
independent  professions  have  been  compiled.     It  was  recog- 
nized at  the  beginning  that  no  great  result  could  be  expected, 
1  N.  F.  XCV,  II,  35. 


§6]  NATIONAL  CUSTOMS.    ALCOHOL  69 

as  the  economic  and  social  conditions  of  men  in  these  profes- 
sions prevent  their  being  much  exposed  to  crime.  The  diflS- 
culty  of  obtaining  such  special  statistics  of  other,  less  sharply 
defined,  occupations  is  very  great,  but,  when  once  collected, 
they  are  more  valuable.  Statistics  of  crime  in  certain  trades 
requiring  absolutely  different  minds  and  temperaments,  such 
as  butchers  and  hairdressers,  would  be  very  desirable;  also 
those  of  hotel-keepers,  waiters,  men-servants,  midwives,  and 
of  engravers  and  locksmiths,  whose  technical  skill,  as  Lin- 
denau  ^  in  particular  has  pointed  out,  determines  the  manner, 
and  perhaps  also  the  frequency,  of  their  criminal  acts.  Finally, 
it  seems  to  me  essential  that  the  share  that  prostitutes  have  in 
crime  should  be  ascertained. 

§  6.  National  Customs.     Alcohol 

The  baleful  influence  of  alcohol  is  one  of  the  best  known  and 
most  transparent  causes  of  crime.  It  is  true  that  the  effect  of 
alcohol  can  be  fairly  calculated  only  when  the  crime  is  the 
direct  consequence  of  alcoholic  indulgence.  And  yet  it  is  just 
the  indirect  effect  of  alcoholism  that  is  of  so  much  greater 
importance  and  is  so  much  more  distressing,  because  those 
who  are  affected  are  by  no  means  always  drunkards. 

The  descendants  of  inebriates  are  seldom  of  normal  health 
and  intelligence.  During  a  period  of  twelve  years,  Demme  ^ 
was  able  to  observe  the  children  in  two  groups  of  ten  families, 
each  group  living  under  the  same  economic  conditions.  One 
group,  in  which  no  intemperance  could  be  traced,  had  50 
normal  children  that  lived;  5  children  died,  2  were  afflicted 
with  St.  Vitus's  dance,  2  were  mentally  deficient,  and  2  had 
congenital  malformations.    In  the  ten  families  of  drunkards, 

1  Lindenau,  "Beruf  und  Verbrechcn"  (ZStW.  XXIV.  381). 
*  Demme,  "  Uber  den  Einfluss  des  Alkohols  auf  den  Organismus  des  Kindes," 
1891. 


70  THE  SOCIAL  CAUSES  OF  CRIME  [§  6 

there  were  only  10  normal  children;  25  children  died,  the  22 
others  were  mentally  deficient,  cripples,  or  epileptics.  Le- 
grain  ^  foimd  very  similar  conditions.  Of  761  children  of 
drunkards,  72.6%  were  degenerate,  that  is,  mentally  deficient, 
epilectic,  or  insane.  Of  54  children,  in  50  families,  who  lived 
to  grow  up  and  whose  fathers  and  mothers  were  drunkards, 
63%  were  themselves  intemperate;  some  of  these  drunkards, 
and  the  rest  of  the  descendants,  in  all  44.4%,  were  mentally 
diseased.  Bourneville  ^  ascertained  that,  among  1000  feeble- 
minded, epileptic,  and  imbecile  children  who  were  admitted 
to  Bicetre  between  1880  and  1890,  there  were  620  cases  in 
which  the  father  or  the  mother  or  both  had  been  intemperate; 
information  was  unobtainable  in  171  cases. 

This  is  the  sorry  birthright  of  the  children  of  drunkards. 
Physical  and  mental  cripples,  how  can  they  be  equal  to  the 
struggle  for  existence.'*  They  are  the  born  candidates  for  the 
insane  asylum  and  the  prison.  Among  the  tramps  that  he 
examined,  Bonhoffer  ^  found  57%  that  were  handicapped  in 
this  way;  most  of  them  were  themselves  drunkards.  This 
direct  inheritance  of  the  inclination  to  drink  is  very  clearly 
illustrated  in  the  accompanying  genealogical  table  taken 
from  my  own  observation. 

But  it  is  not  alone  this  sad  heritage  that  menaces  the 
children.  It  is  not  necessary  to  dwell  upon  what  life  means 
in  the  family  of  a  drunkard.  Sunk  in  filth  and  wretchedness, 
inured  to  the  horrible  sight  of  intoxication,  accustomed  to 
the  brutal  selfishness  of  the  father,  to  low  quarrels  and  rough 
handling,  how  can  a  child  form  any  moral  conceptions? 
The  street,  with  all  its  dangers,  becomes  the  second  home  of 
such  unfortunates.    It  is  solely  due  to  a  lucky  chance  if  they 

1  Legrain,  "  Degen^rescence  et  alcoholisme,"  Paris,  1895. 

2  Matti  Helenius,  "Die  Alkoholfrage,"  Jena,  1903,  p.  246. 

'  Bonhoffer,  "Uber  grossstadtisches  Bettel-  und  Vagabondentum "  (ZStW. 
XXI,  20). 


§6] 


NATIONAL  CUSTOMS.    ALCOHOL 


72  THE  SOCIAL  CAUSES  OF  CRIME  [§  6 

themselves  do  not  learn  to  drink  in  their  earliest  youth. 
The  dread  of  prison,  too,  early  disappears.  Most  drunkards 
come  into  conflict  with  the  law  from  time  to  time,  and  the 
child  who  often  knows  his  father  to  be  in  jail  soon  loses  his 
fear  of  the  criminal  judge. 

This  is  only  one  phase  of  the  danger  to  which  the  children 
of  drunkards  are  exposed.  It  is  increased  by  the  poor  econo- 
mic condition  of  drunkards'  families.  Liquor  is  a  large  item 
in  the  temperate  workman's  expense  account;  how  much 
larger  must  it  be  in  that  of  the  drunkard.^  Whether  he  is 
working  or  is  on  strike,  whether  he  takes  a  holiday  on  black 
Monday  or  is  out  of  employment  owing  to  his  habits,  the 
quantity  of  alcohol  he  consumes  remains  the  same;  it  is  his 
wife  and  children  that  go  without  the  necessaries  of  life. 
The  poverty  and  wretchedness  thus  engendered  among  the 
women  and  children  not  seldom  leads  to  their  first  criminal 
steps,  the  first  theft,  the  first  sentence. 

I  shall  content  myself  with  these  few  references  to  the  in- 
direct influence  of  alcohoUsm  on  the  criminal  world;  it  is 
much  easier  to  prove  the  results  for  which  the  occasional 
drunkard  and  the  inebriate  are  directly  responsible. 

Baer  ^  has  collected  the  most  comprehensive  statistics 
relating  to  the  connection  between  crime  and  alcoholic  indul- 
gence. He  obtained  his  facts  from  49  Prussian  penitentiaries 
and  32  prisons  for  men,  18  penitentiaries  and  prisons  for 
women,  and  21  houses  of  correction  and  reformatories  for 
both  sexes.  Of  30,041  male  prisoners,  49.9%,  of  2796  female 
prisoners,  18.1%  were  drunkards. 

The  number  of  drunkards,  as  the  following  table  shows,  is 
ai)proximately  the  same  among  all  male  convicts. 

That  we  do  not  find  intoxication  noted  among  the  tramps 

1  Baer,  "Der  Alkoholismus,  seine  Verbreitung  und  seine  Wirkiing  auf  den 
individuellen  und  sozialen  Organismus,"  Berlin,  1878,  p.  349. 


§6] 


NATIONAL  CUSTOMS.    ALCOHOL 


73 


in  the  workhouse  is  only  natural,  A  crime  committed  in  a 
state  of  intoxication  leads  to  prison  and  the  penitentiary, 
not  to  the  workhouse.  But  nearly  half  of  the  vagabonds  are 
habitual  drinkers.  Snell  ^  and  Bonhoffer  ^  found  even  higher 
figures  than  Baer.  BonhofiFer  ascertained  that,  among  113 
tramps  who  had  become  criminals  before  their  twenty-fifth 
year  but  at  the  time  of  examination  were  above  that  age, 
there  were  only  twelve  who  did  not  drink  spirits  regularly 
every  day.  The  average  quantity  was  three-quarters  of  a 
litre.  In  the  house  of  correction  in  Wunstorf  (Hanover) 
Snell  found,  among  100  inmates,  87  who  for  years  had  been  in 
the  habit  of  drinking  1 J^  litres  of  spirits  a  day.  67%  naturally 
showed  signs  of  chronic  alcoholism. 

TABLE   XIII 


Kind  op 

Institution 

Number 
OF  Pbis- 

ONEBS 

Dbinkebs 

Among  the  Dbinkebb 
these  webe 

In 

ALL 

% 

Occa- 
sional 

% 

Ha- 
bitual 

% 

Occa- 
sional 

% 

Ha- 
bitual 

% 

Penitentiary- 
Prison    .    .    . 
House  of 
Correction 

19,531 
8,067 

2,443 

8817 
3324 

1058 

45.1 
41.6 

43.3 

4606 
2465 

23.6 
30.5 

4211 

859 

1058 

21.2 
10.7 

43.3 

4606 
2465 

52.2 
70.4 

4211 
859 

47.0 
26.8 

More  drunkards  are  found  in  the  penitentiaries  than  in  the 

prisons;    but,  on  the  other  hand,  crimes  committed  during 

intoxication  lead  oftener  to  prison  than  to  the  penitentiary. 

In  order  to  explain  this  phenomenon,  the  crimes  for  which  the 

sentences  were  imposed  would  have  to  be  examined,  but  I 

do  not  believe  the  statistics  to  be  such  that  this  can  safely 

be  done.     They  do  not  distinguish  sharply  enough  between 

occasional  drunkards,  habitual  drunkards,  and  sober  persons. 

'  tSne/i,  cited  by  Hoppe,  "Die  Tatsacheniiber  den  Alkohol,"  2d  ed.    Berlin, 
S.  Calvary,  1901,  p.  216. 
2  Loc.  cit.  p.  13. 


74  THE  SOCIAL  CAUSES  OF  CRIME  [§  6 

Generally  speaking,  the  occasional  drunkard  is  one  who 
drinks  to  excess  only  on  special  occasions,  whereas  the  habit- 
ual drunkard  is  one  who  does  not  need  a  holiday  or  some 
festival  as  an  excuse  for  excessive  indulgence.  But,  as  there 
are  only  too  many  festive  occasions  for  the  man  who  is  seeking 
them,  the  distinction  between  the  two  groups  becomes  blurred. 
In  addition,  many  a  man  is  a  steady  drinker  who  seldom  or 
never  gets  drunk,  and,  on  the  other  hand,  a  man  may  become 
intoxicated  on  rare  occasions  without  being  a  drunkard. 
These  considerations  show  how  subjective  judgment  must  be 
in  such  cases;  120  directors  of  penal  institutions,  probably 
aided  by  subordinate  oflBcials,  have  had  a  hand  in  the  statistics 
mentioned.  Hence  the  weak  points  in  subjective  opinions 
of  alcoholism  and  intoxication  confront  us  120  times  and 
prevent  a  uniform  consideration  of  the  results. 

More  useful  are  Baer's  ^  figures  relative  to  the  inmates  of 
the  penal  institution,  Plotzensee,  near  Berlin,  for  in  this 
case  he  alone  was  the  judge.  Of  3227  prisoners,  1174 
(=  36.5%)  drank;  999  (  =  84.2%)  of  these  were  occasional, 
the  other  175  habitual,  drinkers. 

In  the  figures  given  in  Table  XIV  the  number  of  crimes 
committed  by  the  habitual  drunkards  falls  considerably  below 
that  committed  by  occasional  drunkards;  their  oflFenses  may 
be  divided  into  two  groups.  The  first  consists  of  assault 
and  battery,  resistance  to  State  authorities,  breach  of 
the  peace,  malicious  mischief  and  sexual  crimes;  in  other 
words,  it  consists  of  crimes  that  are  committed  with  violence 
and  brutal  force.  The  second  group  is  made  up  of  thefts 
and  embezzlement.  Even  a  slight  degree  of  intoxication 
makes  the  execution  of  these  latter  crimes  more  difficult, 
while  it  facilitates  the  commission  of  the  crimes  in  the  first 
group. 

1  Loc.  cit.  p.  352. 


§6] 


NATIONAL  CUSTOMS.    ALCOHOL 


75 


Geill  ^  too,  in  an  examination  of  first  offenders  in  Copen- 
hagen, found  a  considerable  variation  in  the  different  crimes; 
of  the  thieves,  14.61%,  without  being  habitual  drinkers,  were 
drunk  at  the  time  the  offense  was  committed,  while,  among 
the  delinquents  who  had  committed  crimes  of  violence,  the 
percentage  rose  to  64.81. 


TABLE  XIV 


Offenses 


Assault  and  battery 

Resistance  to  State  authority 

Breach  of  the  peace 

Malicious  mischief 

Sexual  crimes 

Theft 

Embezzlement 


351 

429 

217 

78 

44 

1467 

260 


Of  these  thebe  webe: 


Occasional 
Dbunkabds 


No. 


180 

300 

120 

43 

29 

243 

49 


% 


51.3 
70.1 
55.2 
55.1 
66.0 
16.5 
18.8 


Habitdal 
Dbunkabds 


No. 


11 

22 

3 

4 

4 

90 

11 


% 


3.1 
5.1 
1.3 
5.1 
9.0 
6.0 
4.2 


The  same  difference  appears  in  the  scanty  statistics  com- 
piled in  the  Grand  Duchy  of  Baden  ^  covering  the  period  from 
October  1  to  December  31,  1895.  While,  in  the  148  cases  of 
resistance  to  authority  64%,  of  assaults  and  battery  46%,  of 
the  offenders  were  intoxicated,  this  was  true  of  only  7%  of 
the  offenders  in  613  cases  of  theft. 

Though  this  relation  between  crime  and  intoxication  may 
seem  quite  comprehensible,  it  is  nevertheless  unfortunate  that 
the  criminal's  own  statements  about  his  condition  cannot  be 
relied  upon.  According  to  the  circumstances,  he  will  endeavor 
to  exaggerate  or  conceal  the  degree  of  intoxication;   nor  can 


^  Geill,  "Alkohol  und  Verbrechen  in  Danemark"  (Der  Alkoholismus,  1904, 
p.  213). 

^  "Der  Missbrauch  geistiger  Getranke  im  Grossherzogtum  Baden."  Karls- 
ruhe, 1896,  p.  51. 


76 


THE  SOCIAL  CAUSES  OF  CRIME 


[§6 


the  testimony  of  witnesses  and  the,  frequently  subjective, 
views  of  the  judge  do  away  with  the  objection. 

An  interesting  attempt  to  determine  the  connection  between 
intoxication  and  crime,  and  one  that  is  wholly  free  from  the 
reproach  of  subjective  judgment,  has  been  made  by  the  exam- 
ining judge,  Otto  Lang,'  in  Zurich.  His  work  is  based  on  the 
official  records  of  the  district  court  in  Zurich  for  the  year  1891. 
In  this  year  141  persons  were  convicted  of  assault  and  battery, 
or  of  participation  on  brawls  in  which  assault  and  battery 
took  place.  Lang  has  ascertained  the  days  of  the  week  on 
which  these  criminal  acts  occurred. 


TABLE  XV 


The  Offehse  was  Committed  oh 


CoirS'ICTED 

Pebsons 


A  Saturday 

A  Sunday    

A  Monday 

Some  other  day,  but  at  night,  or  in  a  public-house     . 

The  other  four  days  of  the  week,  but  in  the  daytime 

Total 


18 
60 
22 
25 
16 


141 


Thus  we  see  that  on  the  208  days  in  the  year  on  which  less 
alcohol  is  consumed,  only  41  of  the  141  convicted  persons 
committed  the  offense,  the  remaining  100  persons  having 
transgressed  on  the  157  days  on  which  we  may  safely  assume 
that  there  is  more  alcoholic  indulgence. 

The  explanation  is  perfectly  obvious.  On  Saturday,  pay- 
day, a  portion  of  the  weekly  wage  is  always  spent  for  drink; 
on  Sunday  the  workman,  whose  home  is  rarely  attractive 
enough  to  keep  him  there,  has  no  other  refuge,  especially 
in  wet  or  cold  weather,  than  the  public-house,  and  on  Monday 


^  Otto  Lang,  "  Alkoholgenuss  und  Verbrechen,"  Basel,  Friedrich  Reinhardt. 


§6]  NATIONAL  CUSTOMS.    ALCOHOL  77 

he  often  stays  at  home  to  recover  from  the  effects  of  his  ex- 
cessive alcoholic  indulgence  the  day  before. 

We  see  that  the  cases  of  assault  and  battery  coincide,  as 
regards  time,  with  pay-days  and  holidays,  and  there  is  only 
one  argument  against  our  regarding  alcoholic  indulgence  as 
the  cause.  The  danger  of  quarrels  is  naturally  greater  on 
Sundays,  when  music  and  dancing,  public  festivals  and 
excursions,  crowd  large  numbers  of  idle  people  into  limited 
spaces,  whereas  on  week-days  they  are  kept  busy  in  factories 
and  workshops.  But  this  argument  is  not  a  sufficient  ex- 
planation of  the  facts,  because  the  large  share  of  the  crimes 
that  are  committed  on  Saturdays  and  Mondays  points  to 
the  same  cause  that  leads  to  the  excess  of  crimes  on 
Sunday.  Schroter^  has  ascertained  what  proportion  of 
the  cases  of  assault  and  battery  that  occur  on  Monday 
are  due  to  persons  who  have  remained  away  from  work 
on  that  day.  He  found  that,  among  2178  such  cases, 
215  occurred  on  Monday,  and  of  these,  112  (=  53%) 
were  committed  by  men  who  did  not  go  to  work  on  that 
day. 

A  number  of  further  investigations  which  are  given  in 
Table  XVI  showed  the  same  results  with  slight  variations. 
I  am  indebted  for  my  own  material  to  Mr.  Fertig,  Medicinal 
Councillor  in  Worms,  who,  at  my  request,  was  kind  enough 
to  collect,  during  four  years,  from  November  8,  1896,  to 
November  7,  1900,  all  the  notijScations  that  he  received  asking 
him,  in  his  capacity  as  circuit  physician  of  the  sanitary  board 
of  Worms,  to  make  an  official  examination  of  persons  who  had 
suffered  injury.  From  these  notifications,  in  which  the  day 
on  which  the  injuries  were  inflicted  was  given,  it  was  easy  to 

'  Cited  by  Koblinski,  "  Alkoholismus  und  Verbrechen."  Bericht  iiber  den 
intemationalen  Kongress zur  Bekampfung  des  Missbrauches  geistiger Getranke 
m  Basel,  1895;  Schriftstelle  des  Alkohol-Gegnerbundes,  p.  164. 


78 


THE  SOCIAL  CAUSES  OF  CRIME 


[§6 


ascertain  on  what  week-days  the  assaults  that  made  official 
action  necessary  were  committed. 


TABLE  XVI 


After  v.  Koblinski 

My  Own 

Statistics 
Assault 

AND 

Batteby 

Afteb 

KtJBZ, 

Assault 

AND 

Batteby 

Afteb  Ixjffleb, 
Cbimes  of  Violence 

Committed: 

All 
Crimes 

Assault 

AND 

Batteby 

In  Vienna 

In  Kobn- 

EUBUBG 

Sundays     .    . 
Mondays  .    . 
Tuesdays  .    . 
Wednesdays 
Thursdays     . 
Fridays      .    . 
Saturdays 
Unknown  .    . 
Holidays    .    . 

165 

68 
28 
20 
20 
17 
62 

121 
32 
9 
9 
5 
4 
25 

254 
125 
69 
62 
62 
48 
103 

502 
182 
95 
67 
62 
82 
94 
32 
126 

289 
190 
128 
100 
86 
110 
128 

63 

120 
31 
30 

26 
30 

24 
50 

16 

Total 

380 

205 

723 

1175 

1094 

327 

The  most  comprehensive  material  has  been  collected  in  the 
government  criminal  statistics  (Vol.  CLV,  II,  p.  34).  In  1902, 
of  the  97,376  persons  convicted  of  aggravated  assault  and 
battery,  34,652  had  committed  their  offenses  on  Sundays 
or  holidays,  60,543  on  working  days.  In  2181  cases  the  day 
was  unknowTi.  On  Sundays  and  holidays  (60  days  in  the  year) 
there  were  578  offenses  each;  on  week-days  198.  This  is  not 
including  local  holidays  and  festivals.     (3.4  : 1.) 

The  same  picture  confronts  us  whether  the  investigation  is 
made  in  Worms,  in  Rhineland,  or  in  Vienna.^  Kiirz  has  ex- 
tended his  investigations  to  the  place  of  the  deed.^ 

Nothing  could  show  more  clearly  what  gives  the  immediate 
impulse  to  assault  and  battery  than  the  fact  that  two-thirds 
of  all  fights  take  place  in,  or  in  front  of,  a  public-house. 

1  Loffler,  "Alkohol  und  Verbrechen"  (ZStW.  XXIU,  533).  A  compre- 
hensive  summary  of  the  literature  is  found  in  Helenius,  loc.  cit. 

2  Kiirz,  "Zur  prophylaxe  der  Roheitsdelikte"  (MSchrKrimPsych.  II,  27). 


6] 


NATIONAL  CUSTOMS.    ALCOHOL 


79 


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s 

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ivaiHj 

00  ^H^^^B 

ivaeaQHX 

3^^ 

80 


THE  SOCIAL  CAUSES  OF  CRIME 


[§6 


The  few  figures  that  I  have  given  speak  volumes.  They 
reflect  sadly  on  what  is  called  "Sunday  rest."  As  long  as  it 
is  impossible  for  the  workman,  the  young  merchant,  the  day 
laborer,  to  spend  his  Sunday  in  a  suitable  way,  —  in  the  dis- 
cussion of  the  prophylaxis  of  crime  it  will  be  explained  what 
is  meant  by  this,  —  as  long  as  the  public  house  is  the  only  at- 
tractive spot  open  to  him,  the  unfortunate  conditions  will  con- 
tinue that  moved  the  chaplain  of  a  penal  institution.  Pastor 
Heim,^  to  exclaim:  "The  Lord's  Day  law  in  its  present  form 
is  a  very  doubtful  benefit."  ^ 


TABLE  XVn 


Locality 

1900 

1902 

1903 

1904 

Total 

% 

Public-house   .    . 

195 

210 

174 

163 

742 

66.5 

Dwelling-house   . 

9 

23 

36 

18 

86 

7.7 

Street 

9 

25 

35 

29 

98 

8.8 

At  work  .... 

33 

22 

20 

87 

87 

7.8 

Unknown     .    .    . 

14 

10 

21 

102 

102 

9.2 

Total        .    . 

260 

290 

286 

279 

1115 

100 

That  it  is  not  the  workman  alone  who  is  imperilled  by  drink, 
is  proved  by  the  criminality  of  students,  which  has  twice, 
in  1893  ^  and  in  1899  *  been  made  the  subject  of  special 
investigation  in  the  government  statistics.  There  is  scarcely 
any  class  of  men  that  is  so  advantageously  situated  as  our 
student  body.  Coming  out  of  educated  families,  as  most  of 
these  students  do,  brought  up  under  the  influence  of  and  fully 
comprehending  ethical  conceptions,  removed  for  the  most 
part  from  all  material  cares  —  where  are  conditions  found 

'  Hugo  Heim,  "Die  jiingsten  und  altesten  Verbrecher,"  Berlin,  Wiegandt 
und  Grieben,  1897,  p.  90. 

^  Also  Krauss  ("  Der  Kampf  gegen  die  Verbrechensursachen,"  Paderbom, 
1905,  p.  65),  in  his  capacity  as  a  Catholic  priest,  agrees  with  this  view. 

3  "Statistik  des  Deutschen  Reiches,"  N.  F.  LXXVII,  II,  p.  7. 

^  "Statistik  des  Deutschen  Reiches,"  N.  F.  CXXXII,  II,  p.  48. 


§6] 


NATIONAL  CUSTOMS.    ALCOHOL 


81 


better  calculated  to  prevent  conflicts  with  the  penal  law? 
Hence,  it  is  so  much  the  more  striking  when  we  find  that  in 
1893,  of  42,000  students,  350,  in  1899,  of  54,000,  435,  were 
convicted. 

TABLE  XVIII 


All  crimes  and  offenses    .... 

Insult 

Aggravated  assault  and  battery . 

Resisting  an  oflScer 

Malicious  mischief 

Simple  assault  and  battery      .    . 

Breach  of  peace 

Theft,  also  when  repeated  .    .    . 
Fraud,  also  when  repeated  .    .    . 


PiSB  10,000 

Students 

thebe  were 

Convictions 


Convictions 
PER   10,000 
Persons  of 
Punish- 
able Age 


83.3 


80.6 


1899 


123.6 


Convictions 

PER   10,000 

Men  from 

21  TO  '25 

Years 


1886-1895 


332.7 


22.2 

17.9 

15.0 

9.4 

14.5 

13.9 

9.3 

10.5 

5.5 

4.6 

4.1 

5.6 

0.7 

1.5 

0.5 

3.0 

14.3 
24.5 
4.4 
4.9 
6.9 
5.8 
21.0 
6.3 


19.8 
95.8 
17.4 
17.0 
24.4 
19.1 
51.5 
16.4 


Compared  with  the  criminality  of  all  classes  of  society, 
that  of  the  students  appears  very  grave,  especially  taking 
into  consideration  how  few  of  their  crimes  are  offenses  against 
property,  which  constitute  46%  of  all  the  crimes  and  offenses 
against  the  laws  of  the  land.^  We  may  therefore  certainly 
take  into  account  the  fact  that  the  students  are  just  at  the 
age  at  which,  as  experience  has  taught  us,  the  inclination  to 
transgress  against  the  law  is  especially  pronounced.  I  have, 
therefore,  also  given  the  relative  figures  for  the  age  between 
21  and  25  years.  To  this  age  belonged  245  of  the  convicted 
students,^  and  undoubtedly  also  the  majority  of  all  students. 

The  diflFerences,  in  contrast  to  the  general  criminal  inclina- 

'  "  Statistisches  Jahrbuch  fiir  das  Deutsche  Reich,"  XVI,  Plate  V. 
^  It  is  striking  that  among  the  convicted  students  17  were  over  30  yeara 
of  age. 


82  THE  SOCL\L  CAUSES  OF  CRIME  [§  6 

tion  of  the  population,  are  the  more  remarkable,  especially 
in  the  last  two  kinds  of  ofiFenses,  when  we  see  how  they  are 
balanced  in  all  the  crimes  and  off  enses  in  which  "the  high  spirits 
of  youth,"  as  the  government  statistics  courteously  express 
it,  cross  the  legal  boundary.  Nor  may  we  overlook  the  fact 
that  cases  of  insult  among  the  students  themselves  seldom 
come  before  the  courts;  moreover,  breach  of  the  peace 
("Hausfriedensbruch"),  insult,  and  simple  assault  and  battery, 
being  offenses  prosecuted  only  at  the  request  of  the  injured 
party,  are  frequently  settled  out  of  court.  The  frequency  of 
cases  of  resistance  to  executive  officers  is  especially  deplor- 
able; doubly  so  when  committed  by  future  judges,  teachers, 
and  physicians.  The  necessity  of  turning  to  the  age  most 
inclined  to  crime  in  order  to  find  equally  high  figures,  and 
the  fact  that,  as  regards  malicious  mischief  and  insult, 
the  students  as  a  class  cannot  bear  comparison  with  the 
total  population,  do  not  permit  us  to  view  this  matter  with 
complacency.^ 

Insult,  breach  of  the  peace,  malicious  mischief,  resisting 
an  officer,  assault  and  battery,  —  all  these  offenses  bear  the 
same  character,  that  of  insubordination  and  violence.  As 
neither  lack  of  home  training  nor  acquired  brutality  can  be 
the  cause  of  these  acts,  no  explanation  remains  but  that  of 
excessive  alcoholic  indulgence.  The  kind  of  offense  does  not 
vary  in  the  least  from  the  rough  acts  that  are  committed  by 
the  less  cultivated  working  population.  It  may  well  be  said 
that,  without  alcohol,  convictions  of  students,  as  we  have  the 
right  to  expect,  would  be  exceedingly  rare.  Student  life  shows 
us  a  sort  of  artificial  criminality  that  is  due  solely  to  the 
customary  use,  or  rather  abuse,  of  alcohol. 

1  On  the  whole,  the  year  1899  seems  to  show  improvement  over  the  year 
1893,  though  not,  imfortunately,  as  regards  theft  and  fraud.  The  severity 
of  the  sentences,  too,  tells  the  same  story  (in  1893  19,  in  1899  only  2,  were 
sentenced  to  prison  for  aggravated  assault  and  battery). 


§6]  NATIONAL  CUSTOMS.    ALCOHOL  83 

In  discussing  the  geographical  distribution  of  crime,  I  have 
already  pointed  out  that  the  distribution  of  aggravated  assault 
and  battery  coincides  exactly  with  the  varying  amount  of 
alcohol  consumption.  In  a  study  of  criminality  in  Wiirttem- 
berg,  Rettich  ^  speaks  of  the  statistics  of  assault  and  battery 
as  indicating  the  character  of  the  resident  population.  It  is 
not  the  hungry  apprentice  traveling  in  search  of  employment, 
the  journeyman,  or  the  habitual  thief,  that  commits  such 
crimes.  "But  the  resident  young  factory  workman,  when  he 
has  received  his  wages,  is,  indeed,  often  in  a  quarrelsome  frame 
of  mind,  and  the  majority  of  the  fights  that  follow,  judging 
by  experience,  take  place  Saturday  or  Sunday  evening." 

In  my  opinion,  cases  of  aggravated  assault  and  battery  do 
not  indicate  the  character  of  the  population,  but  they  un- 
doubtedly do  characterize  local  and  national  customs.  Ret- 
tich, however,  is,  I  think,  right  in  saying  that  the  danger  lies 
not  in  the  depravity  of  the  habitual  criminal,  but  in  intoxi- 
cation. Drunkards  undoubtedly  commit  their  share  of  these 
crimes,  but  it  is  not  the  larger  one:  with  60.4%  of  the  persons 
who  were  convicted  of  aggravated  assault  and  battery  in  1889 
it  was  their  first  ofiFense!  In  1900  the  percentage  was  51.8;  in 
1901,  59.3;  in  1902,  58.4;  1903,  57.5;  1904,  57.3;  thus  exactly 
three-fifths  of  those  convicted  are  persons  of  unblemished 
reputations  who  pay  heavily  for  their  intoxication  on  Sunday. 
Our  view  is  well  borne  out  by  the  surprising  sameness  of  the 
figures  for  several  years,  with  approximately  100,000  convic- 
tions in  a  year.  The  characteristic  manner  of  the  crimes, 
which  are  all  stamped  as  impulsive,  shows  that  it  is  not  the 
depravity  of  the  drunkard,  who  lives  as  a  parasite  at  the  ex- 
pense of  society,  that  is  so  dangerous,  as  the  occasional  excess 
of  the  workman,  the  craftsman,  the  student. 

*  Rettich,  "Die  wiirttembergische  Kriminalitat "  (Wiirttembergische  Jahr- 
biicher  fiir  Statistik  und  Landeskunde,  Jahrgang  1899,  I,  p.  409). 


84  THE  SOCIAL  CAUSES  OF  CRIME  [§  6 

In  the  army  and  navy  quite  different,  but  psychologically 
related, crimes  appear:  from  1894 to  1899  in 88  (2%)  of  the  cases 
of  military  insubordination,  in  75.4  of  the  cases  of  fatal  as- 
sault, intoxication  was  officially  determined.  The  conclusive- 
ness of  all  the  subjective  experience  of  judges,  of  all  statistical 
data,  still  leaves  a  gap,  in  failing  to  show  in  what  way  the 
connection  between  excessive  alcoholic  indulgence  and  assault 
and  battery  can  be  explained.  We  must  turn  first  to  the  ques- 
tion of  the  psychic  effect  of  alcohol.  Not  until  within  the 
last  decade  have  exhaustive  investigations  been  made,  by 
Kraepelin  ^  and  his  pupils,  of  the  effect  of  larger  and  smaller 
quantities  of  alcohol  on  intellectual  attainments. 

Even  quantities  that  are  entirely  insufficient  to  produce 
intoxication,  and  that  would  correspond  to  the  amount  con- 
tained in  from  a  half  to  a  whole  litre  of  beer,  bring  about  a 
distinct  slackening  of  intellectual  power,  evidence  of  which 
appears  in  difficulty  in  remembering,  and  in  retardation  of 
simple  psychic  processes;  as,  for  instance,  in  the  addition  of 
simple  figures,  or,  in  experiments  with  compositors,  in  a  de- 
crease in  the  amount  of  work  performed.  The  sequence  of 
ideas,  also,  is  disturbed,  the  conceptual  relation  of  words  to 
one  another  is  loosened.  All  these  affections  do  more  towards 
explaining  the  depravity  and  obtuseness  of  the  drunkard  than 
the  explosions  due  to  intoxication.  Rather,  the  proven  de- 
terioration in  the  perception  of  external  impressions  might 
help  us  to  an  understanding  of  criminal  actions;  it  gives  rise 
to  a  misunderstanding  of  gestures  and  words.     But,  in  my 

1  Kraepelin,  "  Beeinflussung  einfacher  psychischer  Vorgange  durch  einige 
Arzneimittel."  Fischer,  Jena,  1892;  ^sc^a/entur^,  "PsychologischeArbeiten." 
I,  published  by  E.  Kraepelin,  Leipzig,  Engelmann;  Kiirz  und  Kraepelin,  Ibid., 
Ill,  p.  417;  Martin  Meyer,  Ibid.,  Ill,  p.  535;  Oseretzkoitsky  und  Kraepelin, 
Ibid.,  Ill,  p.  587;  ErnM  Rudin,  Ibid.,  IV,  p.  1;  Smith,  "Die  Alkoholfrage," 
Tubingen,  Osiander,  1895;  Fiirer,  "Bericht  iiber  den  internationalen  Kongresa 
zur  Bekampfung  des  Alkoholmissbrauchs,"  Basel,  1894,  p.  369. 


§6]  NATIONAL  CUSTOMS.    ALCOHOL  85 

opinion,  no  extensive  influence  can  be  attributed  even  to 
this  efiFect. 

On  the  other  hand,  we  know  of  another  effect  of  alcohol 
that  is  of  the  greatest  interest.  In  experimental  psychology  a 
certain  movement  that  responds  to  a  certain  irritation  is 
called  the  reaction;  by  movements,  not  only  those  of  the 
hands  being  understood,  of  course,  but  also  those  of  the  tongue 
and  vocal  muscles.  Between  the  irritation  and  the  beginning 
of  the  responsive  movement  a  period  of  time,  that  is  measur- 
able by  delicate  instruments  to  within  one  one-thousandth  of 
a  second,  elapses.  This  is  the  time  occupied  by  the  psychic 
process.  It  is,  of  course,  very  short  when  the  work  that  the 
mind  has  to  do  is  very  simple,  as,  for  instance,  in  experiments 
where  the  reaction  consists  of  a  formerly  agreed-on,  easy 
movement  of  the  finger  responding  to  a  sound.  Under  the 
influence  of  even  very  small  doses  of  alcohol  this  period  is 
shortened  still  more;  but  this  acceleration  is  not  to  be  regarded 
as  an  improvement  in  the  performance,  for,  as  experiments 
have  shown,  it  takes  place  at  the  cost  of  reliability.  The  psy- 
chic process  induced  by  the  irritation  is  either  superficial  or 
is  omitted  altogether;  the  reaction  represents  nothing  but  an 
involuntary  movement  as  a  response  to  an  irritation,  or  to 
an  anticipated  irritation.  The  instant  when  the  irritation 
takes  place,  which  can  be  fairly  accurately  foreseen,  is  antici- 
pated; the  responsive  movement  occurs  at  the  moment  when 
the  irritation  is  expected,  not  after  it  has  been  actually  carried 
out;  somewhat  in  the  same  way  as  a  soldier  in  his  first  at- 
tempts at  target  practice,  or  under  special  stress,  can  no  longer 
control  his  eagerness  and  pulls  the  trigger  before  he  has  done 
taking  aim. 

This  kind  of  response  to  an  irritation  is  called  a  "premature 
reaction";  if  the  mind  had  to  choose  between  two  or  more 
movements,  the  premature  reaction  becomes  a  "false  reac- 


86  THE  SOCIAL  CAUSES  OF  CRIME  [§  6 

tion."  The  occurrence  of  these  premature  and  false  reactions- 
after  indulgence  in  alcohol,  are  obviously  due  to  a  condition 
of  increased  excitability  precisely  in  executing  movements. 
The  psychic  process  of  deliberation  is  slighted,  owing  to  the 
increased  motorial  tension.  Whether  the  actual  irritation 
was  the  one  expected,  and  whether  the  response  corresponded 
to  it  and  was  purposeful,  does  not  usually  become  clear  to 
the  criticism  that  follows,  until  the  error  has  been  made  and 
cannot  be  recalled. 

This  eflPect  of  alcohol  on  the  activity  of  psychic  functions  is 
applicable  to  the  events  of  everyday  life.  And  it  enables  us 
to  see  the  connection  between  intoxication  and  crime  in  the 
proper  light.  In  the  public-house,  and  afterwards  in  the 
street,  the  same  qualities  of  alcohol  are  effective.  The  irrita- 
tion consists  of  an  utterance,  an  abusive  word,  a  threatening 
gesture,  an  accidental  knock;  the  reaction  is  an  insult,  a  blow 
with  the  fist,  with  a  stick,  with  a  beer  glass,  a  stab  with  a 
knife. 

If  the  normal  course  of  the  reaction  were  not  affected  by 
the  alcohol  consumed,  the  afterthought  might  exercise  its 
authority,  and  the  most  practical  form  of  defense  be  found 
against  the  attack,  which  is  so  often  only  an  imaginary  one. 
But,  just  as  in  the  experiments  performed  in  the  laboratory, 
the  psychic  process  is  hindered  or  prevented  by  the  liquor 
that  has  been  drunk;  the  response  to  the  irritation  follows 
prematurely;  by  the  time  the  mind  has  done  its  work,  the 
increased  motorial  excitability  has  delivered  the  blow.  The 
judgment  of  the  reason  comes  limping  along  after  the  hasty 
action.^     "The  increased  facility  of  motorial  reaction  is  the 

'■  It  may  be  pointed  out  here  how  very  important  the  results  of  these  ex- 
periments are  for  the  problem  of  "free  determination  of  will."  The  reaction  is 
a  simple  act  of  the  will.  As  small  a  quantity  of  alcohol  as  10  gr.,  corresponding 
approximately  to  only  about  3  of  an  oxmce  of  brandy,  a  tenth  of  a  litre  of  wine, 
or  a  quarter  of  a  litre  of  beer,  alters  the  reaction.     Thus,  even  such  small  doses. 


§6]  NATIONAL  CUSTOMS.    ALCOHOL  87 

source  of  all  those  unpremeditated  and  purposeless,  because 
impulsive  and  violent,  actions,  which  have  made  alcohol  so 
notorious,  not  only  in  the  history  of  the  foolish  and  audacious, 
but  especially  in  the  annals  of  crimes  of  passion." 

The  knowledge  of  the  psychological  effect  of  alcohol  gives 
us  a  full  understanding  of  the  crimes  that  are  committed 
under  its  influence.  We  might  calculate  what  kind  of  offenses 
they  would  be,  even  without  the  aid  of  constant  observation 
and  statistics.  In  its  very  first  stages,  motorial  excitability 
shows  itself  in  loud  talkativeness,  screaming,  singing  —  dis- 
turbing the  peace;  then  the  impulse  to  make  purposeless  mo- 
tions finds  occupation  in  handling  inanimate  objects,  the  color 
and  shape,  often  the  mere  existence,  of  which,  act  as  an  irri- 
tation —  damaging  property;  there  follow  altercations  with 
persons,  which  lead,  in  rapid  sequence,  to  insult,  to  breach 
of  the  peace,  to  resistance  to  officers,  to  assault  and  battery, 
both  simple  and  aggravated. 

They  are  always  the  same  acts,  taking  their  course  accord- 
ing to  the  scheme  of  premature,  unpremeditated,  exaggerated 
reactions  responding  to  an  external  irritation.  Thus,  too,  it 
becomes  comprehensible  that  the  crimes  are  not  the  result  of 
habitual  drinking,  but  of  occasional  intoxication.  Of  course, 
the  chronic  inebriate,  too,  will  sometimes  succumb  to  the 
acute  effect  of  alcohol,  and,  when  intoxicated,  will  commit  an 
assault,  perhaps  sooner  than  the  usually  sober  workman.  But 
in  this  case,  too,  it  is  the  alcoholic  excess  of  the  evening  that  is 


entirely  insufficient  to  produce  intoxication,  disturb  the  action  of  the  will. 
This  gradually  increases  up  to  the  point  where  the  action  of  the  will  ceases 
altogether,  the  state  of  intoxication  recognized  in  §  51  of  the  penal  code. 
It  follows:  1,  that  the  lack  of  an  intermediate  step  between  the  freedom  of 
decision  and  complete  cessation  of  the  will's  action  is  based  on  insufficient 
psychological  preliminary  knowledge;  2,  that  responsibility  for  an  act  per- 
formed under  the  influence  of  liquor  must  be  made  exclusively  dependent  on 
the  degree  of  intoxication. 


88  THE  SOCIAL  CAUSES  OF  CRIME  [§  7 

the  immediate  cause.  To  how  much  greater  an  extent  does 
this  apply  to  the  numerous  workmen,  young  clerks,  and  stu- 
dents who,  while  intoxicated,  commit  some  crime,  and  pay 
for  the  excess  of  a  moment  with  imprisonment,  disgrace,  and 
the  ruin  of  their  whole  career. 

We  cannot  overestimate  the  significance  of  these  facts  for 
the  prophylaxis  of  crime,  especially  in  view  of  the  extent  to 
which  the  crimes  of  alcohol,  aggravated  assault  and  battery  in 
particular,  predominate.  The  certain  knowledge  of  this  im- 
portant cause  of  a  large  group  of  crimes,  opening  up  to  us  the 
possibility  of  adopting  really  effective  measures  in  regard  to 
it,  is  our  only  consolation  in  considering  the  misery  produced 
in  our  country  by  the  custom  of  drinking. 

§  7.  Other  Forms  of  Indulgence 

With  us  in  Germany  the  abuse  of  other  luxuries  is  a  very 
small  factor  in  criminality.  Lombroso's  ^  assertion  that  the 
habit  of  taking  snuff  among  prostitutes  and  criminals,  and  of 
smoking  among  recidivists,  proves  the  existence  of  an  "etio- 
logical tie  between  tobacco  and  crime,"  is  wdthout  any  solid 
foundation.  When  we  consider  the  kind  of  psychological 
effect  that  tobacco  has,  it  is  diflScult  to  understand  how  a 
crime  could  be  produced  by  its  use.  The  same  applies  to  tea 
and  coffee.  Their  effect  on  the  processes  of  the  mind  is  so 
entirely  different  from  that  of  alcohol,  that  it  cannot  surprise 
us  if  no  crime  can  be  attributed  even  to  their  misuse. 

In  recent  years,  however,  alcohol  has  had  to  compete  in 
the  east  of  Germany  with  a  dangerous  rival,  ether.  After  an 
intoxicating  effect  of  very  short  duration,  ether  produces  a 
condition  of  numbness  and  paralysis,  so  that  it  is  not  so  likely 
to  lead  to  crime  as  alcohol.  We  do  not  as  yet  know  what  de- 
generative effects  it  may  have  on  the  children  of  those  who 
^  Lombroso,  loc.  cit.  p.  90. 


§7]  OTHER  FORMS  OF  INDULGENCE  89 

indulge  in  it,  but  it  is  certain  that  its  habitual  use,  by  destroy- 
ing family  life  and  undermining  the  economic  balance,  creates 
conditions  that  are  favorable  to  the  growth  of  crime.  It 
behooves  us,  therefore,  to  keep  an  eye  on  this  social  menace, 
and  to  take  steps  to  prevent  the  misuse  of  ether  before  it  be- 
comes a  rooted  custom. 

The  opium  habit  is  of  no  importance  in  Germany,  or  any- 
where in  Europe,  and  need  only  be  mentioned  because  of  its 
prevalence  in  Asia,  especially  in  China,  and  the  same  is  true 
of  the  hasheesh  habit,  which  is  found  to  such  an  extent  in 
Northern  Africa  and  Egypt.  The  effect  of  both  is  so  paralyzing 
on  the  motorial  centres  especially,  that  it  is  next  to  impossible 
for  the  users  of  the  drug  to  move  about  in  public  while  under 
its  influence,  so  that  no  danger  to  people  in  the  streets  can 
follow. 

Morphine  has  an  effect  similar  to  that  of  opium.  It  can 
never  become  a  national  poison  in  the  true  sense,  owing,  for- 
tunately, to  its  high  price.  It  is  used  mainly  by  educated 
people,  especially  by  those  belonging  to  the  professions  in 
which  it  is  easily  procurable.  According  to  Rodet,^  among 
650  men  addicted  to  its  use,  287  were  physicians  and  21 
druggists. 

It  has  this  disadvantage  in  comparison  with  alcohol,  that 
those  who  are  accustomed  to  it  find  it  more  difficult  to  do 
without  it,  and  very  seldom  succeed  in  breaking  themselves 
of  the  habit.  The  first  signs  of  degeneration  due  to  morphine 
soon  appear,  —  neglect  of  appearance,  of  family,  of  duty. 
The  desire  for  the  drug  becomes  more  and  more  irresistible, 
and  when  the  legal  way  of  procuring  it,  by  a  physician's 
prescription,  or  the  illegal  but  easy  method  of  purchasing  it 
from  a  druggist,  fails,  the  victim  frequently  resorts  to  the  for- 
gery of  a  prescription,  to  fraud  and  theft,  and,  if  it  be  a  woman, 
^  Rodd,  "AUgemeine  Wiener  medizinische  Zcitung,"  1897,  No.  27. 


90  THE  SOCIAL  CAUSES  OF  CRIME  [§  8 

to  prostitution,  in  order  to  obtain  it.  When,  as  quite  often 
happens,  the  same  person  is  addicted  to  the  use  of  both  mor- 
phine and  alcohol,  the  case  is,  indeed,  grave. 

The  use  of  cocaine  is  a  rarer  cause  of  crime  than  is  the  use 
of  morphine.  When,  however,  cocaine  is  responsible,  it  has 
always  led  to  an  acute  psychosis,  accompanied  by  the  halluci- 
nations that  are  usually  produced,  generally  in  a  few  months, 
by  indulgence  in  this  drug  for  even  a  relatively  short  time. 
Such  crimes  must  therefore  —  I  personally  have  known  a  case 
of  uxoricide  by  a  physician —  be  regarded  as  the  acts  of  insane 
persons. 

§  8.  Prostitution 

Prostitution,  that  is,  self-surrender  for  payment,  originally 
instituted  by  priests  for  the  honor  of  the  divinity  and  the^ 
benefit  of  the  temple,  and  later  put  into  practical  form  by 
statesmen  like  Solon,  has  existed  in  all  ages  and  will  always 
continue  to  exist.  The  most  ancient  historical  documents  ^ 
speak  of  it;  but  they  also  tell  us  —  a  fact  that  is  important 
for  legislation  —  that  all  conceivable  means  of  repressing  it 
had  already  been  tried.  In  vain!  With  the  weapons  of  reli- 
gion and  Christian  love  Louis  XI  of  France,  for  instance, 
attempted  to  abolish  it  altogether  and  founded  places  of  refuge 
for  fallen  women.  On  his  return  from  Palestine  he  ordered  it 
to  be  completely  exterminated.  The  concealed  prostitution 
that  immediately  began  to  flourish  everywhere,  however, 
compelled  him,  before  a  year  had  elapsed,  to  repeal  the  order 
and  to  assign  certain  streets  to  the  use  of  prostitutes. 

The  harshest  measures  (flogging,  the  pillory,  and  capital 
punishment)  proved  of  no  avail  in  repressing  the  evil,  which 
continued  to  spread  and  thrive  only  in  a  more  secret  and  dan- 
gerous form,  and  they  were  always  given  up  after  a  time. 

^  Eugen  Miller,  "Die  Prostitution."    J.  F.  Lehmann,  Munich,  1898. 


§  8]  PROSTITUTION  91 

Thus,  in  all  countries,  legislation  has  oscillated  between  ex- 
tremes, turning  from  the  method  of  herding  prostitutes  to- 
gether in  barracks  to  allowing  them  unlimited  freedom,  from 
occasional  superintendence  to  the  strict  supervision  of  every 
individual.  The  tendency  to  respect  the  rights  of  the  individ- 
ual and  to  place  them  above  those  of  society,  on  the  one  hand, 
and,  on  the  other,  the  moral  fear  of  sanctioning  the  evil  by 
legally  allowing  it,  have  always  led  to  the  repeal  of  regulative 
measures.  This  has  been  followed  by  such  a  spread  of  prosti- 
tution in  its  most  dangerous,  clandestine  form,  that  it  later 
became  necessary  to  recognize  and  regulate  it  again. 

We  may  regret,  but  we  must  not  ignore,  the  fact,  that  the 
tendency  to  immorality  cannot  be  exterminated  by  laws. 
The  man  who  had  the  most  extensive  knowledge  of  prosti- 
tution. Parent  du  Chatelet,^  said  that,  wherever  people  con- 
gregated, it  was  as  unavoidable  as  sewers  or  cess-pools.  But, 
because  it  seems  to  be  impossible  to  abolish  this  evil,  it  does  not 
follow  that  it  should  be  allowed  to  grow  and  spread  in  all 
directions.  Its  repression  should  be  striven  for  as  far  as  pos- 
sible, and  for  that,  it  is  essential,  above  all,  that  its  danger- 
ousness  should  be  thoroughly  understood. 

We  may  leave  the  danger  to  health  undiscussed;  I  will 
merely  mention  that  the  annual  number  of  cases  of  venereal 
diseases  in  the  German  army,  which  is  better  off  than  that  of 
France  or  Austria  in  this  respect,  equals  a  third  of  the  number 
of  men  who  were  wounded  during  the  Franco-Prussian  war,^ 
and  that  in  the  German  hospitals,^  from  1889  to  1891,  4.4% 
of  all  the  patients  were  suffering  from  such  diseases;  that  is, 
almost  as  many  as  those  suffering  from  the  scourge  tubercu- 

'  Parent  du  Chatelet,  "De  la  prostitution  dans  la  ville  de  Paris,"  1857. 

*  Toply,  "Die  venerischen  Erkrankungen  in  den  Armeen"  (Archiv  fiir 
Dermatologie,  1890). 

'  "  Medizinische  statistische  MitteilungcD  aus  dem  kaiserlichen  Gesund- 
heitsamt,"  III,  p.  45. 


92  THE  SOCIAL  CAUSES  OF  CRIME  [§  8 

losis  (4,8%).  In  considering  these  figures,  we  must  not  over- 
look the  fact  that  only  a  relatively  small  number  of  persons 
suffering  from  sexual  diseases  (according  to  Guttstaft,  per- 
haps 5%)  go  to  hospitals.  Important  as  the  prevalence  of 
such  diseases  is  to  the  physician  and  the  sociologist,  it  would 
take  us  too  far  afield  to  discuss  this  phase  of  the  problem  of 
prostitution.  But  the  extent  to  which  prostitution  exists  and 
its  effect  on  criminality  must  be  dealt  with  at  length. 

The  number  of  prostitutes  can  scarcely  be  given  in  figures. 
Those  that  are  registered  by  the  police  as  "Kartenmadchen," 
"Kontrolldirnen, "  etc.,  represent  but  a  small  percentage, 
especially  in  large  cities.  In  Berlin,  for  instance,  there  are 
about  3000  under  police  supervision,  but  the  whole  number  of 
such  women  in  that  city  is  placed  at  from  40,000  to  50,000.^ 
Conditions  are  not  very  different  elsewhere;  whole  armies 
of  girls  live  entirely  or  largely  on  the  money  they  earn  by 
prostitution. 

Where  do  all  these  women  come  from,  and  what  presses 
them  into  this  calling?  There  are  two  views  as  to  this,  and 
they  are  rather  harshly  and  directly  opposed  to  each  other. 
According  to  the  one,  prostitutes  are  the  victims  of  our 
social  conditions,  which  make  it  so  difficult  for  a  woman  to 
get  on  honestly;  Bebel  ^  and  Hirsch  ^  may  be  mentioned 
as  its  typical  exponents.  Lombroso  and  Ferrero,^  Tarnow- 
skaja  ^  and  Strohmberg,^  however,  think  that  necessity  plays 
but  a  small  part  in  forcing  women  into  prostitution.     They 

*  Number  173  "der  amtlichen  Drucksachen  des  Reichstages,"  p.  931. 

2  August  Bebel,  "Die  Frau  und  der  Sozialismus,"  Stuttgart,  1897,  27th  ed., 
p.  176. 

3  Hirsch,  "Verbrechen  und  Prostitution  als  soziale  Krankheitserscheinun- 
gen,"  Berlin,  1897,  Th.  Glocke. 

*  Lombroso  und  Ferrero,  "Das  Weib  als  Verbrecherin  und  Prostituierte." 
^  Tarnowskaja,  P.,  "fitude  anthropometrique  sur  les  prostituees  et  les 

voleuses,"  Paris,  1889;  tranlsated  by  Kurella,  Hamburg,  1894. 
6  Sirohmberg.  "Die  Prostitution,"  Stuttgart,  1899,  Ferd.  Enke. 


§8]  PROSTITUTION  93 

look  upon  the  prostitute  as  a  degenerate,  and  regard  prosti- 
tution as  the  equivalent  of  the  male  world  of  crime,  the  form 
of  criminality  peculiar  to  women. 

We  cannot  fail  to  recognize  that  prostitution  does  absorb 
a  considerable  percentage  of  criminally  inclined  women. 
Every  prostitute  lives  without  working,  at  the  expense  of 
society;  she  corresponds  in  a  measure  to  the  male  beggar 
and  the  vagabond.  In  a  period  of  three  years  Baumgarten  ^ 
found  only  32,  30,  and  41  convictions  among  2400  prosti- 
tutes, and  altogether  only  21  cases  of  theft.  He  accounts 
for  this  by  the  prostitute's  absolute  lack  of  energy.  Those 
few  prostitutes  who  make  a  practice  of  robbing,  he  believes 
to  be,  first  of  all,  thieves  who  have  turned  to  prostitution 
because  it  affords  easy  opportunities  of  stealing  from  men. 
Strohmberg  contrasts  the  prostitutes  of  the  passive,  indolent 
type,  with  another  group  that  consists  of  those  who  have  some 
secondary  occupation  as  well.  But  only  in  very  rare  cases 
is  it  honest  work;  generally  it  is  thieving.  Of  the  462  pros- 
titutes that  Strohmberg  examined,  175  were  thieves,  of  which 
32  came  from  notorious  families  of  thieves.  His  figures,  which, 
though  dealing  with  small  groups,  are,  nevertheless,  note- 
worthy because  they  are  so  reliable,  show  that  prostitution  is 
neither  a  contrast  nor  an  equivalent  to  crime,  but  rather  that 
the  two  are  often  united.  It  must,  however,  be  admitted  that 
a  large  percentage  of  prostitutes,  in  spite  of  their  passiveness, 
would  turn  to  crime  if  the  possibility  of  living  by  prostitution 
did  not  exist. 

On  the  other  hand,  it  cannot  be  denied  that  the  necessity 
that  sometimes  makes  a  man  a  thief  may  as  easily  drive  a 
woman  to  prostitution.  The  low  pay  received  by  certain 
classes  of  working  women,  especially  waitresses,  second-rate 

*  Baumgarten,  "Die  Beziehung  der  Prostitution  zum  Verbrechen"  (Arch. 
KrimAnthr.  XI.  10). 


94  THE  SOCIAL  CAUSES  OF  CRIME  [§  8 

actresses,  and  dressmakers'  assistants,  makes  it  necessary 
for  many  a  girl  to  supplement  her  wages  in  some  way.  But 
we  must  not  forget  that  a  large  number  are  led  to  adopt  these 
dangerous  occupations,  instead  of  becoming  domestic  serv- 
ants, for  instance,  by  their  strong  sexual  impulses  and  their 
love  of  dress  and  an  apparently  comfortable  life. 

Just  the  figures  that  Bebel,  Blaschko,  and  others  give  in 
support  of  the  view  that  it  is  poverty  that  drives  women  to 
prostitution  seem  to  me  to  prove  the  contrary.  It  is  true  that 
working  women,  saleswomen,  dressmakers,  and,  above  all, 
former  domestic  servants,  predominate,  but  they  also  form 
an  unusually  large  part  of  the  population;  Behrend's  proofs 
that  5.3%  of  all  prostitutes  live  with  their  parents  must  make 
us  suspicious.  These  better  situated  women  belong  to  the 
not  inconsiderable  number  who  have  not  oflBcially  turned  to 
prostitution,  but  they  differ  from  the  girls  who  are  under 
police  supervision  only  in  the  manner  in  which  they  carry  on 
their  occupation.  Strohmberg  found  poverty  given  as  the 
cause  of  prostitution  only  in  one  case,  and  in  that  particular 
instance  he  ascertained  that  it  was  absolutely  untrue. 

I  would  not,  however,  deny  the  significance  of  economic 
wretchedness.  Girls  that  come  from  the  very  lowest  proleta- 
rian classes,  the  daughters  of  drunkards  and  prostitutes  for 
instance,  never,  of  course,  learn  to  look  upon  prostitution  as 
anything  degrading.^  Still  graver  in  its  consequences  is  the 
present  custom  that  prevents  prostitutes  from  being  restricted 
to  certain  localities.  They  now  live,  as  a  rule,  in  workingmen's 
families.  From  their  earliest  childhood  onward  the  children 
in  the  house  see  the  practice  of  this  occupation,  and  it  is  the 
outward  brilliance  that  often  impresses  them,  rather  than  the 
underlying  misery;    daily  they  see  work,  hunger,  and  scanty 

1  Bettmann,  "Die  arztliche  tlberwachung  der  Prostituierten,"  Jena,  1905, 
p.  257. 


§  8]  PROSTITUTION  95 

clothing  in  their  own  families  in  crass  contrast  to  the  life  of 
idleness,  theatres,  concerts,  balls,  and  luxury  in  dress  that 
the  prostitutes  enjoy.  These  impressions  remain  and  facili- 
tate the  first  step  towards  vice.  If,  later,  necessity  or  temp- 
tation, love  of  adventure,  and  envy  of  a  friend's  smarter 
clothes,  confront  a  young  girl,  the  force  of  habit,  and  knowl- 
edge of  the  life,  have  dulled  her  sensibilities  in  that  direction 
to  such  an  extent  that  resistance  is  possible  only  to  an  un- 
usually strong  character. 

This,  it  seems  to  me,  is  the  course  of  development  in  most 
cases,  and  on  it  my  opinion  is  founded.  Undoubtedly  our 
social  conditions  —  miserable  economic  circumstances  and  the 
fact  that  prostitutes  are  not  restricted  to  certain  localities  — 
are  the  cause  of  prostitution,  but  these  factors  are  efiFective 
only  when  descent  and  training,  and,  above  all,  natural  dis- 
position, prepare  the  ground  for  them.  And  natural  disposi- 
tion or  temperament  is,  indeed,  of  the  most  importance; 
not  so  much,  pronounced  sexual  instincts,  for  just  among 
prostitutes  they  are  often  lacking,  but  general  inferiority  of 
the  mind.  "In  many  cases  prostitution  is  to  be  regarded 
solely  as  a  symptom  of  a  defective  psychic  condition,"  says 
Bonhoffer,^  who,  among  180  prostitutes,  found  that  only  one- 
third  were  without  psychic  anomalies.  Just  as  the  weak  are 
the  first  victims  of  great  epidemics,  so,  too,  in  the  struggle  for 
existence,  it  is  the  many  defective  natures  that  first  sink  into 
the  morass  of  prostitution. 

There  are  next  to  no  statistics  regarding  the  share  that 
prostitutes  have  in  criminality.  Offenses  against  police  ordi- 
nances are  not  included  in  our  criminal  statistics.  They  are 
the  torment  of  our  lower  courts.  It  is  not  rare  for  the 
same  prostitute  to  be  sentenced  50  times  and  more,  accord- 

1  Bonhoffer.  " Prostituierte "  (ZStW.  XXIII.  119). 


96  THE  SOCIAL  CAUSES  OF  CRIME  [§  8 

ing  to  the  strictness  of  the  supervision  and  her  own  skill 
in  evading  it.  An  accumulation  of  offenses  from  time  to 
time  results  in  her  being  turned  over  to  the  higher  court. 
This  means  a  sojourn  in  the  workhouse  for  a  period  that  is 
increased  by  three  or  six  months  at  every  subsequent  convic- 
tion by  this  court,  but,  on  regaining  her  liberty,  she  immedi- 
ately returns  to  her  former  life. 

Two  factors  that  are  inseparable  from  prostitution  are 
largely  instrumental  in  causing  her  relapse  —  the  traffic 
in  prostitutes  and  the  activity  of  the  men  who  live 
on  the  earnings  of  prostitutes,  commonly  known  as  pan- 
derers  or  cadets.  Section  180  of  our  Penal  Code  is  prob- 
ably quite  unique.  The  renting  of  rooms  to  prostitutes  is 
classed  as  traffic  in  prostitutes;  none  the  less,  all  prostitutes 
must  have  dwellings  somewhere,  or,  if  they  carry  on  their 
occupation  away  from  home,  they  must  have  at  least  a  lodg- 
ing. As  has  been  mentioned,  about  3000  prostitutes  are  offi- 
cially known  to  the  poUce  in  Berlin,  who  also  know  where 
and  in  whose  houses  they  live.  This  fact  must  somehow  be 
reconciled  to  another,  that  for  some  years  past  in  Germany 
the  number  of  convictions  for  traffic  in  prostitutes  has  never 
exceeded  4000  annually,  in  the  whole  country !  In  all  the  larger 
cities,  and  often,  too,  in  smaller  towns,  —  I  need  name  only 
Hamburg,  Altona,  Kiel,  Cologne,  Mainz,  Strassburg,  Heidel- 
berg, Mannheim,  Karlsruhe,  Freiburg,  Nuremberg,  Munich, 
Leipzig,  Dresden,  Halle,  and  Magdeburg,  —  there  exist 
official  brothels  known  to  the  police  as  such,  —  often,  in  fact, 
whole  streets  of  brothels.  The  fine  distinction  that  bestows 
the  name  of  brothel  in  the  "technical  police  sense"  only  on 
those  houses  that  are  hcensed  to  sell  liquor,  that  have  a  com- 
mon entertainment  room,  and  in  which  the  proprietor  wrings 
large  profits  from  the  prostitutes,  has  no  existence  in  reality. 
With  or  without  a  license,  the  keepers  of  such  houses  sell 


§  8]  PROSTITUTION  97 

wine  and  spirits,  and,  with  or  without  a  concession,  they 
treat  the  girls  like  slaves. 

The  actual  meaning  of  "Kuppelei"  is  ters^y  contained  in 
the  simple  definition,  "affording  the  opportunity  for  prosti- 
tution"; do  the  authorities  then  know  nothing  of  the  way  in 
which  the  prostitutes  are  looted  and  robbed  by  the  extor- 
tionate methods  of  their  landladies?  Whether  they  live  in 
common  dwellings  or  alone,  it  is  only  the  owner  of  the  house 
that  profits  by  their  occupation,  and,  as  a  rule,  the  prostitute 
leaves  the  brothel  poorer  than  when  she  entered  it.  But  this 
does  not  pronounce  the  death  sentence  of  the  brothel,  for  the 
prostitute  who  lives  alone  suffers  even  worse  treatment, 
as  she  is  robbed  by  both  the  landlady  and  her  "cadet." 

It  can  safely  be  asserted  that  there  is  no  more  abominable 
form  of  crime  than  that  practised  by  these  men  who  act  as 
go-betweens  for  prostitutes.  It  is  inseparable  from  clandes- 
tine prostitution,  and,  at  the  same  time,  is  very  difficult  for 
criminal  justice  to  get  hold  of.  Every  judge  will  confirm  the 
fact  that  many  obstacles  intervene  to  prevent  conviction  for 
this  offense;  partly  because  of  her  affection,  partly  because 
of  her  loyalty,  but  mainly  because  of  her  fear,  it  is  not  easily 
possible  to  induce  a  prostitute  to  testify  against  such  a  man, 
and  it  is  not  rare  for  her  to  commit  perjury  in  order  to  get 
him  out  of  his  difficulty.  In  many  cases,  especially  at  the 
beginning  of  their  career,  prostitutes  might  turn  to  some  other 
mode  of  life,  were  it  not  for  their  unfortunate  dependence  on 
these  so-called  "protectors."  The  extent  of  their  other  crimes, 
robbing  the  men  who  visit  their  prostitutes,  and  assaults  with 
and  without  dangerous  weapons,  is  beyond  exact  knowledge, 
for  we  are  seldom  able  to  recognize  officially  such  a  panderer 
in  the  man  who  is  arrested  for  some  other  offense. 

All  these  dangers  to  society  thrive  the  more  rankly,  the 
stricter  the  police  is  in  its  repression  of  all  houses  resembling 


98  THE  SOCIAL  CAUSES  OF  CRIME  [§  8 

brothels,  —  for  the  prostitutes  are  thus  driven  into  the  hidden 
corners  of  the  city,  into  the  low  public-houses,  and  the  public 
parks,  —  and  the  more  the  fear  of  arrest  causes  them  to  draw 
the  veil  of  night  over  their  dark  doings.  There  is  only  one 
evil  that  it  is  difficult  to  separate  from  the  brothel  system, 
and  that  is  the  traffic  in  prostitutes.  And  yet  the  best  remedy, 
even  for  this,  is  an  efficient  system  of  segregation.  If,  as  in 
Bremen,  it  is  made  impossible  for  keepers  of  brothels,  and 
lodgings  for  prostitutes,  to  overcharge  and  rob  these  women, 
the  traffic  in  prostitutes  becomes  unprofitable,  and  thus  the 
chief  motive  is  removed. 

There  is  also  less  temptation  for  prostitutes  in  brothels  to 
rob  the  men  who  visit  them.  In  many  cases  no  complaint  is 
made  if  a  theft  is  committed  by  a  prostitute,  as  the  victim 
would  rather  suffer  his  loss  than  allow  the  matter  to  become 
public.  The  same  is  true  of  the  not  infrequent  attempts 
to  blackmail,  of  threats  to  sue  for  maintenance,  or  of  de- 
nunciation for  attempting  to  procure  abortion,  and  also 
of  the  carefully  planned  scenes  in  which  the  pretended 
husband  discovers  the  pair  and  has  to  be  pacified  with 
money.  But  where  there  are  well-supervised  brothels,  the 
danger  of  such  crimes  is  greatly  diminished.  The  improve- 
ment of  the  sorry  conditions  under  which,  owing  to  the  treat- 
ment they  receive,  prostitutes  now  live  will  also  contribute 
to  greater  legal  security. 

It  is  well  known  that  there  is  a  movement  on  foot  to  abolish 
brothels,  and,  indeed,  to  put  an  end  to  all  state  supervision. 
The  reasons  for  this  so-called  "abolitionist  movement" 
are  entirely  of  a  sentimental  nature;  greatly  as  we  admire 
its  ideal  tendency,  we  must  none  the  less  deplore  the  com- 
plete lack  of  understanding  of  the  matter  that  its  advocate? 
manifest. 

The  abolition  of  prostitution,  as  history  shows,  cannot  be 


\ 


§  8]  PROSTITUTION  99 

accomplished.  Its  dangers,  especially  for  public  health  and 
the  morality  of  the  people,  are  so  great  that  the  State  is  bound 
to  keep,  within  certain  limits,  the  evil  that  it  cannot  extermi- 
nate. Measures  adopted  to  this  end  have  as  little  to  do  with 
the  approval  or  support  of  prostitution  as  the  legal  steps  taken 
to  repress  crime  have  to  do  with  its  recognition  as  a  pro- 
fession. But,  even  if  this  were  not  so,  we  might  point  to  such 
examples  as  Solon,  Louis  the  Saint,  the  Popes  ^  Benedict  IX, 
Paul  II,  Sixtus  IV,  Julius  II,  Leo  X,  and  St.  Augustin.  If  it 
were  possible  to  put  an  end  to  prostitution,  its  sufferance 
and  regulation  by  the  State  would  certainly  undermine  the 
morals  of  the  people.  Now,  however,  the  State  does  not 
countenance  prostitution  (§  180),  though  it  does  recognize 
it  through  the  penal  law  and  police  ordinances  (§361,  6). 
It  provides  a  penalty  for  an  offense  that  it  can  and  will  prose- 
cute only  in  very  rare  cases.  This  undoubtedly  works  greater 
harm  to  the  people's  sense  of  right  and  justice  than  would  a 
statute,  any  offense  against  which  would  be  energetically 
followed  up  and  punished. 

Advantages  to  be  gained  by  the  institution  of  brothels, 
or,  better,  the  barrack  system  now  used  in  Bremen,  are  the 
protection  of  the  public  health,  the  removal  of  the  prostitutes 
from  the  streets  and  public  places,  and  the  diminution  of  public 
scandal  that  would  thus  be  attained.  Above  all,  if  certain 
houses  and  streets  are  set  apart  for  prostitutes  and  made 
subject  to  State  supervision,  especially  if  the  paragraphs 
relating  to  traffic  in  prostitutes  are  made  severer,  thus  pre- 
venting the  plundering  and  overcharging  of  prostitutes,  the 
business  of  the  procurer  will  be  practically  done  away  with, 
and  that  is  a  benefit  to  which  public  legal  security  is  certainly 
entitled. 

'  Krauss,  loc.  cit.  p.  277. 


100  THE  SOCIAL  CAUSES  OF  CRIME  [§  9 

§  9.  Gambling  and  Superstition 

Gambling  is  of  comparatively  slight  criminal  significance 
with  us  in  Germany.  The  number  of  those  who  ruin  themselves 
by  games  of  chance  is  not  large  in  proportion  to  the  total 
criminality.  It  is  much  greater  in  countries  like  Austria  and 
Italy,  where  even  the  poorest  persons  take  part  in  the  so-called 
"little  lottery."  Though  it  is  difficult  to  determine  accu- 
rately the  number  of  thefts  and  embezzlements  that  are  in- 
directly due  to  the  passion  for  gambling,  and  the  losses  it 
entails,  yet  it  can  scarcely  be  doubted  that  there  is  a  connec- 
tion between  the  two.  The  hope  of  escaping  from  all  financial 
care  by  one  lucky  stroke,  which  feeds  the  passion  for  gambling 
of  many  an  educated  man  and  many  an  officer,  and  which 
eventually  brings  about  their  downfall,  must  of  course  become 
the  more  enticing  the  lower  the  classes  of  the  population  are 
that  engage  in  gambling.  The  feverish  excitement  with  which 
in  Italy  everyone  waits  for  the  numbers  to  be  drawn  each  week, 
is  a  very  grave  sign  in  the  eyes  of  the  sociologist,  and,  if  he 
observes  the  figures  of  those  who  venture  their  last  few  coins 
on  this  hazard,  he  will  not  underestimate  the  temptation  to 
dishonesty.  In  addition,  superstition  has  no  stronger  support 
than  the  passion  for  gambling.  Not  a  few  persons  in  Italy 
live  by  prophesying  the  outcome  of  the  lottery  and  giving 
advice  in  regard  to  it. 

For  a  number  of  years  the  tendency  to  gamble,  and  the 
deceptive  hope  of  winning  great  gains  easily,  have  been  in- 
creasing to  an  undesirable  extent.  It  is  just  as  impossible  to 
ascertain  the  large  sums  that  are  gambled  away  at  the  races 
as  it  is  to  determine  the  number  of  thefts  and  frauds  that 
are  committed  to  provide  money  with  which  to  bet  on  the 
horses.  It  has  been  attempted  to  prevent  all  these  doings 
by  closing  the  betting-rooms,  but  with  doubtful  success.     In 


§9]  GAMBLING  AND  SUPERSTITION  101 

spite  of  all  efforts,  it  has  not  been  possible,  up  to  now,  to  pre- 
vent the  activity  of  the  bookmakers,  and  the  money  of  the 
poor  and  the  youthful  will  continue  to  find  its  way  to  them. 
I  cannot  help  fearing  that  this  opens  up  a  new  and  plenteous 
source  of  crime,  with  which  we  shall  have  to  reckon  in  future. 

Superstition  ceases  to  play  a  part  in  the  commission  of 
crimes  as  soon  as  the  average  education  of  a  people  has  reached 
a  certain  height,  though  it  may  still  occasionally  happen  that 
a  shrewd  fellow  takes  advantage  of  a  simple-minded  person's 
superstition,  especially  in  the  sphere  of  religion.  I  do  not 
fail  to  recognize  what  Hans  Gross  in  particular  has  done  for 
our  knowledge  in  tracing  certain  crimes  to  a  superstitious 
source.  It  certainly  sometimes  gives  us  the  key  to  otherwise 
incomprehensible  crimes,  and  oftener  enables  us  to  interpret 
some  of  their  attendant  phenomena.  But,  fortunately,  such 
cases  are  rare.  I  do  not  think  that  we  shall  often  meet,  hence- 
forward, in  cultured  countries  with  crimes  that  are  based  on 
superstition,  except,  of  course,  those  committed  by  insane 
persons.  In  Russia,  however,  judging  by  Lowenstimm's  ^  in- 
vestigations, the  number  of  offenses  that  are  due  to  the  belief 
in  witches  is  greater.  He  mentions  the  sacrifice  of  human 
beings  in  times  of  famine  and  pestilence,  the  murder  of  magi- 
cians and  witches,  and  of  children  with  physical  deformities 
(changelings),  the  opening  of  graves  for  the  purpose  of  ob- 
taining talismen  and  to  prevent  the  return  of  vampires,  the 
rape  of  innocent  girls,  and  sodomy  committed  in  order  to  cure 
gonorrhoea. 

In  Italy,  too,  especially  in  the  southern  provinces,  super- 
stition prevails  even  in  the  very  highest  classes.  Bulls'  horns, 
amulets,  mystic  signs,  such  as  the  extension  of  the  index  and 
little  fingers   ("gettatura"),  used  to  ward  off  the  evil  eye 

^  Lowenstimm,  "  Aberglaube  und  Strafrecht,"  Berlin,  1897,  Johannes  Rade; 
Lowensiimm,  "Der  Fanatismus  als  Quelle  der  Verbrechen,"  Berlin,  1899. 


102  THE  SOCIAL  CAUSES  OF  CRIME  [§10 

("mal'  occhio"),^  are,  indeed,  harmless  evidences  of  supersti- 
tion, but  they  prove  how  little  enlightened  the  southern  Ital- 
ians in  general  are. 

Many  a  puzzling  penal  ofiFense  is  probably  rooted  in  super- 
stitious ideas.  Gradually,  as  the  people  become  more  enlight- 
ened, this  danger  will  grow  less.  Yet  we  really  have  no  reason 
to  look  down  too  haughtily  on  Russia  and  Italy.  The  regret- 
table fact  that  even  so-called  educated  people  allowed  them- 
selves to  be  deceived  in  the  most  brazen  manner  by  the 
spiritistic  flower  medium,  Mrs.  Rothe,  the  ignorant  wife  of  a 
tinker,  shows  how  deeply  rooted  the  inclination  to  superstition 
is.  We  should  also  be  preserved  from  over-estimation  of  our- 
selves when  we  recall  the  hundreds  of  thousands  of  lives  that 
were  sacrificed  in  the  persecutions  of  witches,  the  last  of  which 
was  not  longer  ago,  in  Germany,  than  the  end  of  the  1700s; 
while,  in  Mexico,  such  persecutions  continued  up  to  the  end 
of  the  1800s. 

/  §  10.  Economic  and  Social  Condition 

The  man  who  stands  on  a  height  to  view  a  landscape  can 
discern  the  character  of  the  country,  the  positions  of  the 
mountains  and  valleys,  more  clearly  than  one  who,  standing 
in  the  valley,  finds  the  distant  view  shut  off.  So,  too,  a  glance 
backwards  over  many  years  discloses  the  heights  and  depths 
of  social  life,  and  penetrates  to  their  causes  more  easily  and 
distinctly  than  can  the  consideration  of  a  single  year. 

The  last  twenty  years  of  German  criminality  are  especially 
suitable  for  such  an  analysis,  because  no  transfiguring  up- 
heavals have  taken  place;  the  years  havmg  been  marked  by 
a  great  economic  and  cultural  advance.    Yet,  notwithstand- 

1  It  is  told  openly  in  Rome  that  pious  Italians,  while  they  were  being  blessed 
by  Pope  Pius  IX,  who  was  supposed  to  have  the  "evil  eye,"  used  to  make  the 
sign  of  the  "gettatura"  behind  their  backs! 


§10] 


ECONOMIC  AND  SOCIAL  CONDITION 


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104  THE  SOCIAL  CAUSES  OF  CRIME  [§  10 

ing,  the  number  of  convicted  persons  has  been  steadily  increas- 
ing every  year,  even  allowing  for  the  growth  of  the  population. 
New  legislation  is  but  very  slightly  responsible  for  this.  The 
chief  changes  are  found  just  in  those  crimes  that,  by  their 
frequency,  determine  the  whole  aspect  of  the  subject. 

In  looking  over  the  most  important  crimes,  the  principal 
statistics  relating  to  which  are  given  in  part  in  Table  XIX, 
we  notice  four  types  of  frequency.  Some  crimes  occur  almost 
equally  often.  Such  are,  for  instance:  false  accusation,  incest, 
sodomy,  criminal  negligence  resulting  in  manslaughter,  rob- 
bery and  extortion,  illegal  imprisonment.  Others,  like  usury, 
perjury,  murder,  and  infanticide,  evading  military  service, 
crimes  and  offenses  in  office  decrease;  they  shed  rays  of  light, 
especially  when  contrasted  with  the  gloomy  picture  that  the 
third  group  presents.  It  consists,  apart  from  a  few  offenses 
which  have  for  their  object  the  procuring  of  certain  ad- 
vantages in  connection  with  property  (fraud  and  forgery),  of 
crimes  of  violence,  aiding  prisoners  to  escape,  resisting  an 
officer,  breach  of  the  peace,  indecent  offenses,  simple  and 
aggravated  assault  and  battery,  rape,  insult,  and  malicious 
mischief.  All  these  crimes  are  increasing  from  year  to  year, 
some  of  them  at  a  positively  alarming  rate. 

Finally,  in  the  fourth  group  of  offenses  I  include  those  that 
show  the  greatest  variation  in  frequency.  The  causes  of  this 
are  multifarious.  Thus,  for  instance,  the  numerous  misdeeds 
of  "procurers"  called  forth  such  an  outcry  against  these 
wretched  fellows  that  the  courts  found  it  expedient  to  proceed 
against  them  with  somewhat  greater  severity;  unfortunately 
this  energy  seems  to  be  evaporating  already. 

Tense  political  conditions  increase  temporarily  the  number 
of  convictions  for  "lese-majeste,"  the  "year  of  attacks,"  1878, 
in  which  the  number  of  prosecutions  for  this  offense  increased 
thirteenfold,  is  particularly  well  remembered.     These  prose- 


§  10]         ECONOMIC  AND  SOCIAL  CONDITION  105 

cutions  took  place,  not,  of  course,  because  the  desire  to  insult 
the  sovereign  grew  so  marvelously,  but  because  the  "criminal 
irritability  of  the  public,"  as  Seuffert  ^  calls  this  supersensi- 
tiveness,  and,  we  might  add,  of  the  courts,  in  such  a  period 
of  political  excitement,  saw  some  danger  to  the  State  lurking 
behind  every  reckless  remark. 

The  extent  to  which  external  circumstances  sometimes  in- 
fluence criminality  has  been  shown  by  Seuffert  in  the  statis- 
tics of  causing  fires  by  negligence.  During  the  years  1892- 
1899  from  1.5  to  2.1  persons  per  100,000  adults  were  convicted 
of  this  offense.  The  only  exceptions  were  the  years  1892  with 
3.3  and  1893  with  3.2  convictions.  From  the  publications 
of  the  Royal  Prussian  Meteorological  Institute,  Seuffert  was 
able  to  ascertain  that  these  two  years  were  particularly  dry 
nearly  everywhere.  This  would,  of  course,  increase  the  danger 
of  starting  fires  by  carelessness. 

More  important  than  all  these  relatively  rare  crimes  are  the 
convictions  for  theft.  Their  fluctuations  weigh  the  more 
heavily  because  the  frequency  of  this  offense  is  rivaled  only 
by  that  of  aggravated  assault  and  battery.  How  important 
the  variation  in  the  different  years  is,  appears  in  the  fact  that 
the  number  of  convictions  for  this  crime  and  for  embezzle- 
ment in  1892  exceeded  that  of  1888  by  28,409.  It  is  impossible 
that  in  four  years  about  30,000  persons  can  have  so  deteri- 
orated morally  that  without  weighty  external  reasons  they 
turn  to  crime.  The  sudden  return  to  honesty  is  almost  more 
striking,  for,  in  the  following  year,  the  number  of  persons 
convicted  of  theft  decreased  by  14,757.  What  causes  these 
fluctuations? 

Theft  is  the  appropriation  of  others'  property,  that  for  some 
reason  rouses  the  desire  for  possession  in  the  person  who  com- 
mits the  offense.    If  a  man's  material  circumstances  allow  him 

'  Seuffert,  loc.  cit.  p.  31. 


106  THE  SOCIAL  CAUSES  OF  CRIME  [§10 

to  gratify  all  his  wishes,  he  will  scarcely  yield  to  the  tempta- 
tion to  take  what  belongs  to  another.  But  this  is  not  the  case 
with  the  poor  man,  who,  in  times  of  need  and  higher  cost  of 
living,  sufiFers  from  a  lack  of  everything. 

The  mode  of  life  of  our  working  classes  is  by  no  means  prac- 
tical and  economical.  The  money  that  is  spent  in  the  public- 
house  would  be  far  better  laid  out  for  food,  for  larger  and  airier 
dwellings,  or  put  by  for  times  of  emergency.  But  we  must 
reckon  with  this,  just  as  with  the  fact  that  illness  and  mis- 
fortune may  reduce  even  the  most  industrious  workman  to 
beggary.  Moreover,  it  is  true  that  a  large  part  of  the  popula- 
tion never  earns  more  than  enough  for  the  necessaries  of  life, 
even  in  times  of  prosperity.  Every  increase  in  the  cost  of 
living  must  therefore  make  the  conditions  of  life  more  difficult, 
and  this  is  felt  the  more  keenly,  the  closer  the  family  lives 
to  the  minimum  cost  of  existence;  hunger  and  misery  looming 
ahead  will  unsettle  even  the  firmest  principles. 

Attempts  to  prove  this  by  statistics  are  not  lacking.  Thus, 
von  Mayr,^  after  comparing  the  fluctuation  in  the  offenses 
against  property  and  in  the  price  of  grain,  came  to  the  fol- 
lowing conclusion:  "In  the  period  from  1835  to  1861,  in  the 
Bavarian  territory  this  side  of  the  Rhine,  about  every  half 
groschen  added  to  the  price  of  grain  called  forth  one  theft 
more  per  100,000  inhabitants,  while  every  half  groschen  that 
grain  declined  in  price  prevented  one  theft." 

This  comparison  is  based  on  the  assumption  that  the  eco- 
nomic conditions  that  prevail  in  a  given  year  are  indicated  by 
the  price  of  grain.  This  has  always  been  assumed,  until,  re- 
cently, Heinrich  Muller,^  under  the  guidance  of  Conrad,  has 

*  von  Mayr,  "Die  Gesetzmassigkeit  im  Gesellschaftsleben,"  Munich,  1877, 
p.  346. 

^  Heinrich  Miiller,  "  Untersuchungen  iiber  die  Bewegung  der  Kriminalitat 
in  ihrem  Zusammenhange  mit  den  wirtschaftlichen  Verhaltnissen,"  I.-D, 
Halle,  1899,  Kammerer. 


§  10]  ECONOMIC  AND  SOCIAL  CONDITION  107 

tried  to  show  that  the  economic  significance  of  the  price  of 
grain  in  the  production  of  crime  has  disappeared.  Instead,  he 
contends,  the  general  industrial  situation  is  becoming  of  more 
and  more  importance  in  its  effect  on  the  status  of  criminality. 
It  may  readily  be  admitted  that,  in  times  of  industrial  pros- 
perity, wages  rise,  and  the  workman  has  more  to  spend  for 
food;  this  rise  in  wages  may  even  balance  an  increase  in  the 
price  of  bread,  just  as  the  latter  is  more  disastrous  in  its  con- 
sequences in  times  of  dullness  and  lack  of  employment. 

Hence  the  attempt  of  Fornasari  di  Verce  ^  to  consider  the 
status  of  industry,  and  the  fluctuations  in  the  cost  of  food,  in 
relation  to  each  other,  is  worthy  of  special  note.  He  calculates 
how  many  hours  of  labor  in  each  year,  at  an  average  wage, 
are  necessary  to  buy  a  certain  amount  of  grain  (100  kg.). 
The  comparison  of  these  figures  with  the  number  of  simple 
and  aggravated  thefts  for  the  years  1875  to  1885  showed  a 
distinct  parallel  between  the  two.  Kurella^  found  the  same 
result  for  the  years  1880  to  1888. 

It  is,  unfortunately,  not  always  possible  to  make  these 
comparisons;  I  have  tried  in  vain  to  obtain  the  necessary 
figures  for  Germany.  The  "  Zentralblatt  fiir  das  Deutsche 
Reich"  publishes  wage-tables,  but  they  cover  too  short  a 
period  of  time  and,  in  addition,  show  tremendous  local  differ- 
ences. Consequently  it  is  impossible  to  use  them  for  this 
purpose,  unless  the  comparison  be  made  only  for  very  small 
districts,  when  the  smallness  of  the  figures  would  greatly 
detract  from  the  usefulness  of  the  result. 

The  objections  that  Miiller  has  raised  to  the  adoption  of 
food  prices  as  a  measure  of  prosperity  might  make  further 
consideration  of  the  relation  between  the  two  seem  super- 

*  Fornasari  di  Verce,  "La  criminality  e  le  vicende  economiche  d'ltalia." 

*  Kurella,  "Der  neue  ZoUtarif  und  die  Lebenshaltung  dos  Arboiters," 
Berlin,  1902,  .Julius  Springer,  j).  27. 


108 


THE  SOCIAL  CAUSES  OF  CRIME 


[§10 


fluous.  If  the  relation  between  the  economic  situation  and 
theft  were  indistinct,  we  might,  indeed,  dispense  with  a  further 
discussion  of  this  question.    But  we  shall  see  that  this  is  not 


TABLE  XX 

Economic  Situation  and  Chdiinality  in  France 
(After  Lafargue:  "Die  neue  Zeit,"  1890,  pp.  20.  21.) 


Ykabs 

0 

5  fc  a  S 

•<  O  E  M 

Fbaucs 

Sacpi-E 
Theft 

Fraud 

Embez- 
zlement 

Cbiues 

AGAINST 
THE 

Pebsos 

Indecent  Assaults 
AND  Rape  op 

Adults 

Cmi.DBEN 

1840 

67.56 

19,531 

1374 

1126 

1622 

157 

284 

1841 

52.02 

17,377 

1297 

1177 

1765 

181 

381 

1842 

58.35 

18,383 

1270 

1232 

1669 

161 

308 

1843 

55.14 

19,900 

1399 

1269 

1771 

180 

339 

1844 

58.24 

21,010 

1504 

1299 

1612 

149 

392 

1845 

55.38 

20,633 

1407 

1316 

1658 

198 

274 

1846 

69.04 

24.753 

1489 

1544 

1696 

145 

379 

1847 

90.58 

31,596 

1883 

1698 

1622 

141 

374 

1848 

41.48 

20,120 

1294 

1360 

1616 

154 

356 

1849 

46.31 

22,070 

1375 

1450 

2015 

222 

467 

1850 

43.54 

23,121 

1475 

1651 

2146 

254 

524 

1851 

43.47 

24,516 

1652 

1653 

2161 

242 

615 

1852 

52.15 

28,090 

1980 

1997 

2013 

228 

611 

1853 

67.12 

33,940 

2284 

2204 

1921 

212 

573 

1854 

87.86 

39,484 

2629 

2420 

1691 

174 

581 

1855 

90.84 

37,883 

2733 

2471 

1613 

160 

582 

1856 

91.16 

36,848 

2519 

2669 

1702 

181 

650 

1857 

67.02 

35,737 

2703 

2690 

1657 

188 

617 

1858 

48.10 

29,374 

2790 

2501 

1947 

238 

784 

1859 

46.91 

27,792 

2666 

2542 

1851 

226 

718 

1860 

59.60 

30,331 

3128 

2680 

1607 

180 

650 

1861 

75.42 

32,729 

3524 

2850 

1696 

217 

695 

1862 

65.88 

32,131 

3842 

2929 

1762 

213 

728 

1863 

59.21 

29.155 

2431 

2655 

1673 

171 

750 

the  case.  Moreover,  special  emphasis  must  be  given  to  the 
fact  that  at  present  the  price  of  bread  turns  the  scales,  as 
regards  the  workman's  expenses. 


§10] 


ECONOMIC  AND  SOCIAL  CONDITION 


109 


The  consumption  of  bread  is  unusually  large  in  the  working 
classes.  According  to  Max  May's  ^  workmen's  housekeeping 
plans  the  total  annual  expenditure  for  this  necessary  article 

TABLE    XX  — Continued 

Economic  Situation  and  Criminality  in  Fbance 
(After  Lafargue:   "Die  neue  Zeit,"  1890,  pp.  20.  21.) 


Years 

Price  of  Bag  of 
150  Kilos  of 
Floor  in  the 
Paris  Market 

Simple 
Theft 

Fraud 

'Embez- 
zlement 

Crimes 
against 

THE 

Person 

Indecent  Assaults 
AND  Rape  op 

Francs 

Adults 

Childbem 

1864 

51.43 

28,345 

3341 

2752 

1703 

176 

764 

1865 

49.60 

28,078 

2432 

2813 

1750 

178 

820 

1866 

60.62 

29.623 

2422 

2799 

1777 

160 

883 

1867 

80.92 

33.097 

2806 

3143 

1704 

124 

805 

1868 

81.22 

35,035 

2990 

3183 

1697 

161 

726 

1869 

58.10 

31.613 

2750 

3292 

1658 

146 

710 

1870 

63.81 

20,531 

1628 

1563 

1297 

54 

558 

1871 

86.59 

27,662 

1684 

1912 

1561 

112 

526 

1872 

72.99 

34,961 

2705 

3110 

1669 

124 

682 

1873 

79.92 

35,289 

2913 

3390 

1708 

97 

783 

1874 

71.10 

34,170 

3008 

3079 

1731 

139 

825 

1875 

57.08 

30,020 

2880 

3122 

1765 

140 

813 

1876 

61.31 

31.781 

2710 

3195 

1849 

140 

875 

1877 

68.78 

33,351 

2968 

3309 

1653 

108 

804 

1878 

67.82 

31,802 

2845 

3288 

1614 

84 

788 

1879 

63.75 

32,943 

2997 

3468 

1677 

130 

812 

1880 

65.09 

37,029 

3445 

3621 

1512 

80 

676 

1881 

65.94 

35.757 

3674 

3747 

1608 

90 

718 

1882 

63.87 

35,930 

3434 

3679 

1660 

95 

752 

1883 

59.96 

35,959 

3449 

3795 

1582 

108 

675 

1884 

51,11 

35.845 

3281 

3545 

1629 

83 

705 

1885 

49.45 

34.239 

3673 

3679 

1518 

65 

622 

1886 

50.94 

34,457 

3595 

3824 

1507 

78 

634 

is  more  than  a  sixth  of  the  workman's  whole  income.      The 
price  of  bread,  however,  does  not  depend  on  the  excellence 

•  Max  May,  "Wie  der  Arbeiter  lebt,"  Berlin,  1897. 


no  THE  SOCIAL  CAUSES  OF  CRIME  [§10 

of  the  grain  crop,  but  on  the  bourse,  as  Hirschberg  ^  has 
shown.  Consequently,  every  increase  in  the  price  of  grain 
must  affect  severely  just  that  part  of  the  population  that 
stands  lowest  in  the  economic  scale. 

As  a  standard  by  which  to  measure  the  price  of  food,  La- 
f argue ^  adopted  the  price  of  a  sack  of  flour  weighing  150  kg., 
which  was  fixed  by  the  municipal  authorities,  in  this  case  in 
Paris,  and  was  entered  in  the  annual  records  of  the  baking 
trade.  A  comparison  of  the  figures  shows  that  every  rise  in 
the  price  of  bread  was  followed  by  an  increase  in  the  number 
of  thefts,  embezzlements,  and  frauds,  while  a  decHne  in  the 
price  lessened  the  number  of  crimes  (Table  XX). 

German  statistics  also  show  the  close  relation  between  the 
fluctuations  in  the  cost  of  grain  and  the  number  of  thefts 
(Table  XXI).  It  is  true,  however,  that  both  in  France  and 
Germany  it  is  not  the  absolute  height  of  the  prices  that  is 
decisive,  but  their  rise  and  fall.  The  year  1882,  for  instance, 
shows  the  highest  percentage  of  thefts  in  the  last  17  years, 
while  the  price  of  rye,  in  the  same  year,  was  moderate.  It 
was  very  high,  however,  during  1880  and  1881,  and  the  effect 
was  still  felt,  or  rather  first  felt,  in  1882.  The  same  condi- 
tions are  noticeable  in  the  following  years.  The  highest  and 
lowest  points  touched  by  the  price  of  grain  do  not  occur  simul- 
taneously with  the  highest  and  lowest  number  of  thefts;  the 
effect  of  the  former  is  not  felt  tUl  a  year  later  (Plate  IV)  .^ 

This  is  partly  due  to  an  external  cause,  which  Albert  Meyer* 

1  C.  Hirschberg,  "Conrads  Jahrbucher  1899,"  III  Folge,  XVII,  p.  255. 
Compare  also  the  figures  in  Table  XXI. 

'  Paul  Laf argue,  "Die  Kriminalitat  in  Frankreich.  Untersuchungen  Uber 
ihre  Entwicklung  und  ihre  Ursachen.    Die  neue  Zeit,"  1890,  p.  20. 

^  Bonger  gives  a  very  similar  table  for  the  Netherlands  in  "  Criminalite  et 
conditions  ^conomiques"  (Amsterdam,  1905,  p.  623),  a  work  that  also  con- 
tains many  valuable  statistics  relating  to  the  same  problem. 

*  Albert  Meyer,  "Die  Verbrechen  in  ihrem  Zusammenhange  mit  den  wirt- 
schaftlichen  und  sozialen  Verhaltnissen  im  Kanton  Ziirich,"  I.-D.  Jena,  1895, 
Gustav  Fischer,  p.  31. 


§10] 


ECONOMIC   AND  SOCIAL  CONDITION 


111 


TABLE  XXI 

Gb.'UN  Prices  axd  CRrwiNALiTT  in  Germany 


1 

2 

3 

4 

5 

Rye 
Pbice  peb 
1000  Kg. 
IN  Beblin 

Markh 

Rte 

Bbead 

PEB  1  Kg. 

IN  Beblin 

MARgH 

Wheat 

PEB 

1000  Kg. 

MARgH 

Feb  100,000  Civilians  op 
Pc.visHABLE  Age  theb"!;  webe 
Pebsons  Convicted  of 

a 

Yeabs 

o 

ill 

2 

z  5  -  s 

g 

^   2   m 
S«  Q 

Ms 

v.  H 

a  u 
a  o  a 

rrvSo 

1880 

187.9 

1881 

196.2 

1882 

152.3 

287 

38 

27 

284 

1883 

144.7 

279 

33 

25 

271 

1884 

143.3 

269 

33 

24 

275 

1885 

140.0 

249 

37 

23 

256 

1886 

130.6 

20.8 

151.3 

244 

28 

21 

259 

1887 

120.9 

20.65 

164.4 

231 

28 

21 

258 

1888 

134.5 

21.22 

172.2 

225 

27 

21 

255 

1889 

155.5 

24.69 

187.7 

244 

31 

22 

281 

1890 

170.0 

27.18 

195.4 

237 

32 

22 

296 

1891 

211.2 

31.66 

224.2 

249 

32 

22 

296 

1892 

176.3 

29.52 

176.4 

272 

39 

26 

323 

1893 

133.7 

21.89 

151.5 

236 

34 

23 

276 

1894 

117.8 

20.43 

136.1 

231 

35 

22 

289 

1895 

119.8 

20.63 

142.5 

224 

32 

21 

278 

1896 

118.8 

20.93 

156.2 

216 

32 

20 

271 

1897 

130.1 

22.30 

173.7 

220 

31 

19 

287 

1898 

146.3 

25.15 

185.6 

224 

33 

20 

293 

1899 

146.0 

24.21 

155.3 

210 

31 

19 

279 

1900 

142.6 

32.96 

151.8 

212 

30 

19 

290 

1901 

170.7 

24.23 

163.6 

223 

33 

19 

284 

1902 

144.2 

24.21 

163.1 

222 

36 

20 

1903 

132.3 

23.83 

161.1 

214 

34 

19 

1904 

133.1 

23.50 

174.4 

227 

32 

18 

1905 

151.9 

24.30 

174.8 

205 

32 

18 

1906 

160.6 

27.06 

179.6 

210 

35 

19 

1907 

193.2 

30.82 

206.3 

209 

35 

19 

1908 

186.5 

31.78 

211.2 

222 

44 

20 

1909 

176.5 

30.21 

233.9 

214 

43 

20 

Price  of  rye:  "Stat.  Jahrbuch  Deutsches  Reich,"  1900,  p.  266;  Ibid., 
1903,  p.  188. 

Rye  bread:  "El.ster:  Souderabdruck  aus  dem  Wbrterbuch  der  Volks- 
wirtschaft, "  Jena,  1910. 

Youthful  offenders:  "Stat,  des  Deutschen  R.  B.,"  237,  II,  2. 

Theft,  receiving  stolen  goods:  Ibid.,  II,  6. 


112 


THE  SOCIAL  CAUSES  OF  CRIME 


[§10 


PLATE   IV 

Theft  and  Grain  Prices  since  1882 

Price  of  1000  kg.  rye  in  Berlin. 

Price  of  1-kilo  loaf  of  rye  bread  in  Berlin. 

Simple  theft  of  youthful  offenders  to  100,000  of  the  total  population. 

Simple  theft,  also  when  repeated,  to  100,000  inhabitants  of  punish- 
able age. 


r 

320 

1 

/ 

\\ 

f 

\ 

310 

1 

\/ 

11 

/' 

/ 

^ 

300 

/■ 

\ 

1  1 

/ 

LL 

1  \ 

1  1 

/ 

1 

290 

1 

1 

,/ 

1 

1 

1 

I 

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S. 

/ 

i^ 

K 

/ 

/ 

diiO 

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/ 

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/ 

s 

/ 

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1 

270 

\ 

X 

■ 

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\ 

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1 

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260 

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i 

(\ 

/• 

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1 

/ 

250 

/ 

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/ 

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V 

i 

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\ 

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\ 

1 

\ 

210 

\ 

1 

^ 

y 

\ 

1 

\ 

^' 

^ 

/ 

200 

' 

\ 

190 

/ 

\ 

/ 

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\ 

i 

180 

\ 

: 

/ 

\ 

1 

/ 

\ 

170 

1 

/ 

1 

/ 

160 

1 

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ISO 

\ 

140 

N 

^. 

^/ 

\ 

1 

\ 

\ 

1 

130 

/ 

\ 

y' 

/ 

\ 

1 

120 

/ 

\ 

1 

^ 

-^ 

no 

100 

o 

OO 
00 

OO 

CO 

INi 
CO 
00 

rn 
OO 
00 

00 

00 

CO 

OO 

ID 
00 
00 

00 
00 

00 
00 
00 

01 
CO 
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o 

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00 

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CO 

en 

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00  c 

3  — 
3  O 

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in 
o 
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05 
O 

§  10]         ECONOMIC  AND  SOCIAL  CONDITION  113 

has  already  pointed  out.  A  large  proportion  of  the  thefts 
committed  in  the  early  winter  months  do  not  come  before 
the  courts  until  the  following  year,  and  our  statistics  generally 
record  crimes,  not  according  to  the  year  in  which  they  were 
committed,  but  according  to  the  date  when  the  cases  were 
disposed  of.  Of  still  greater  importance,  it  seems  to  me,  is 
the  explanation,  first  given,  I  believe,  by  von  Mayr  ^  and  also 
accepted  by  Hermann  Berg,-  that  the  retail  price  is  not  imme- 
diately afiFected  by  the  wholesale  price;  even  when  the  price 
falls,  the  pressure  in  the  economic  situation  is  not  at  once 
relieved,  any  more  than  a  calamity  is  instantly  brought  about 
by  a  rise  in  the  price. 

Mtiller  has  entirely  overlooked  the  fact  that  the  effect  is 
thus  delayed.  This  is  the  only  explanation  of  his  considering 
the  increase  in  the  number  of  convictions  in  1892,  in  spite  of 
the  fall  in  the  price  of  grain,  "a  distinct  proof  that  no  connec- 
tion exists  between  criminality  and  the  price  of  grain."  The 
connection  is  not  such  a  mechanical,  automatically  regulated 
one  as  von  Mayr's  remarks  (p.  106)  might,  probably  unin- 
tentionally, make  it  appear.  The  range  of  price  alone  is  not 
determinative.  Indeed,  without  affecting  the  importance  of 
what  has  already  been  said,  we  can  admit  that  in  future  the 
price  of  bread,  in  comparison  with  all  the  other  economic 
factors,  will  lose  something  of  its  significance.  Nothing  could 
show  more  clearly  that  Miiller's  doubt  of  the  value  of  the 
price  of  grain  as  a  measure  of  the  economic  situation  is  un- 
necessary, than  the  fact  that  for  a  period  of  twenty  years 
theft  and  the  price  of  bread  have  only  twice,  and  then  but 


^  von  Mayr,  "Statistik  der  gerichtlichen  Polizei  im  Konigreich  Bayem  und 
in  einigen  anderen  Landern,"  Munich,  1867,  p.  160. 

*  Hermann  Berg,  "  Getreidepreise  und  KriminalitJit  in  Deutschland  seit 
1882."  Abhandlungen  des  kriminalistiachen  Seminars  Berlin,  N.  F.  I.,  2nd 
Heft,  Berlin,  1902,  J.  Guttentag. 


114  THE  SOCIAL  CAUSES  OF  CRIME  [§  10 

slightly,  deviated  from  the  regular  parallelism  of  rise  and 
fall.i 

But  the  establishment  of  this  fact  is  not  enough  to  answer 
our  inquiry  into  the  deepest  cause  of  this  social  phenomenon. 
The  conclusion  that  every  theft  is  an  act  of  desperation 
brought  about  by  starvation  and  cold  would  be  entirely 
wrong.  The  thefts  committed  by  men,  and  they  are  four- 
fifths  of  the  total  number,  are  seldom  of  articles  that  would 
serve  to  appease  hunger  or  provide  protection  against  the 
cold.  More  important  than  absolute  need,  is  the  inability 
to  adapt  oneself  to  changed  conditions.  Whoever  is  accus- 
tomed to  spend  a  good  deal  on  amusement  cannot  easily 
give  up  doing  so  when  times  are  hard.  The  more  a  man 
earns,  the  greater  are  his  demands  in  respect  to  his  dwelling, 
clothing,  and  food,  and  the  more  he  spends  for  amusements 
of  all  kinds,  in  clubs,  and  for  alcoholic  drinks.  In  fact,  ex- 
perience shows  that,  unfortunately,  the  sum  spent  on  neces- 
saries is  less  influenced  by  prosperity  than  that  spent  on 
superfluous  pleasures.  If  wages  suddenly  decrease,  or  if, 
in  consequence  of  a  rise  in  the  price  of  food,  a  larger  propor- 
tion of  the  income  is  claimed  by  the  necessaries  of  life,  the 
working  man,  who  is  the  first  to  suffer  under  this,  does  not 
at  once  give  up  his  membership  in  the  athletic  club,  the 
choral  society,  the  amusement  and  political  clubs  to  which 
he  belongs,  neither  does  he  reduce  the  amount  that  he  is 
accustomed  to  spend  on  Sunday  for  beer  and  other  drinks. 

In  so  far  I  entirely  agree  with  von  Rohden,-  when,  on  the 
ground  of  his  experience  as  a  prison  chaplain,  he  protests 

^  In  order  to  avoid  any  misunderstanding,  I  wish  especially  to  emphasize 
that  Miiller,  too,  shares  the  general  opinion  that  the  conduct  of  the  population, 
especially  of  the  working  class,  as  regards  the  laws,  is  regulated  by  the  eco- 
nomic situation. 

^  von  Rohden,  "Von  den  sozialen  Motiven  des  Verbrechens"  (Zeitschrift 
fiir  Sozialwissenschaft,  VII,  p.  526). 


§  10]         ECONOMIC  AND  SOCIAL  CONDITION  115 

against  every  theft's  being  traced  back  to  poverty  as  its  cause. 
But  it  means  that  the  situation  is  altogether  misunderstood, 
when  poverty  and  need  are  completely  rejected  as  causes  of 
crime,  a  course  followed  by  the  "  Rheinisch-Westf alische 
Gef angnisgesellschaf t "  ^  at  its  seventy-sixth  annual  meeting. 
If  we  understand  the  word  "need"  in  a  somewhat  wider, 
less  literal  sense,  the  connection  immediately  becomes  clear 
and  comprehensible.  It  is  not  the  lack  of  the  most  necessary 
things,  but  the  inability  to  give  up  habits  acquired  in  times 
of  prosperity,  that  makes  the  man  prone  to  yield  to  tempta- 
tion. And  this  danger  of  yielding  is  even  greater  if  those  who 
feel  the  pinch  of  poverty  look  on  life's  pleasures  with  imma- 
ture eyes.  The  number  of  youthful  offenders  convicted  of 
theft  teaches  us  that.  In  their  case,  the  increase  in  the  number 
of  thefts  that  corresponds  to  the  rise  in  prices  is  more  pro- 
nounced than  in  the  case  of  the  whole  population,  while  the 
decrease  is  not  so  great  as  among  the  adults.  Young  people 
have  relatively  larger  incomes  than  mature  workmen,  for  very 
few  of  them  stint  themselves  by  contributing  to  the  support 
of  the  family.  When  wages  are  reduced,  or  prices  rise,  these 
youths  of  unformed  character  find  they  must  forego  certain 
pleasures,  and  are  soon  assailed  by  the  temptation  to  lay  hands 
on  what  does  not  belong  to  them. 

Dishonesty  is  a  remarkably  sensitive  indicator  of  the  eco- 
nomic situation.  This  is  shown  by  the  geographical  distri- 
bution of  thefts,  and  is  demonstrated  anew  every  winter  by 
the  effect  of  the  greater  diflBculty  of  maintaining  life,  and, 
above  all,  it  is  proved  by  the  tremendous  variation  in  different 
years,  and  its  dependence  on  the  cost  of  provisions.  People 
of  means,  it  is  true,  are  not  affected  by  economic  distress, 
at  least  not  in  a  way  that  would  bring  about  any  considerable 
increase  in  criminality;  but  it  does  strike  hard  at  the  poor 
»  (MSchrKrimPsych.  I,  715.) 


116  THE  SOCIAL  CAUSES  OF  CRIME  [§10 

who  live  from  hand  to  mouth.  That  the  man  without  means 
is  not  at  once  heroic  enough  to  sacrifice  to  the  necessity  of  the 
time  all  his  pleasures,  is  very  regrettable;  but  it  is  comprehen- 
sible enough,  especially  when  all  enjoyable  free  pleasures 
are  lacking. 

.  Receiving  stolen  goods  is  the  sister  oflPense  of  theft,  and 
it,  too,  follows  closely  the  fluctuations  in  the  price  of  food. 
But  the  connection  between  the  two  is  indirect.  For  every- 
thing that  he  steals,  unless  it  be  money  or  something  for  his 
own  immediate  use,  the  thief  requires  a  receiver. 

Of  much  greater  interest  are  the  convictions  for  fraud  and 
embezzlement.  Older  statistical  reports  showed  a  connection 
between  these  crimes  and  the  price  of  grain,  but  figures  in 
Germany  indicate  that,  with  slight  fluctuations,  the  frequency 
of  these  crimes  has  been  steadily  increasing  since  1882.  As 
has  already  been  pointed  out,  more  convictions  for  fraud  occur 
in  winter,  and  the  number  falls  again  in  spring,  a  proof  that 
decreased  receipts  are  a  fruitful  source  of  such  transgressions. 
The  apparent  contradiction  that  lies  in  the  fact  that,  though 
these  crimes  are  so  deeply  affected  by  economic  necessity, 
they  are  not  influenced  by  the  price  of  food,  is  not  inexpli- 
cable. I  believe  that  Berg's^  explanation  is  the  true  one: 
"Fraud  thrives  in  particular  in  the  noise  and  bustle  of  com- 
mercial life,  where  everyone  jostles  his  neighbor  in  the  struggle 
for  gain.  The  intricacies  of  trade  and  commerce  offer  the 
best  opportunity  for  deception  and  falsification,  and  also  the 
best  means  of  avoiding  discovery." 

This  agrees  perfectly  with  what  we  learn  from  a  comparison 
of  occupations  and  crimes.  Only  10.9%  of  the  population  is 
engaged  in  commercial  pursuits,  but  the  percentage  of  such 
persons  convicted  of  fraud  from  1890  to  1894  was  19,  of 
embezzlement  26.2%.  During  the  same  period,  persons  em- 
.  1  Loc.  cit.  p.  116. 


§  10]         ECONOMIC  AND  SOCIAL  CONDITION  117 

ployed  in  industrial  occupations  were  responsible  for  31.8%  of 
the  embezzlements,  and  31.6%  of  the  frauds  committed,  al- 
though they  constituted  only  17%  of  the  population.  Thus, 
we  see  clearly  on  what  soil  these  two  crimes  best  flourish. 
Where  commerce  and  industry  thrive,  the  opportunity  for 
fraud  and  embezzlement  is  most  frequently  found.  Hence, 
eras  of  economic  prosperity  increase  the  temptation,  and 
though  they  seal  the  one  source  of  crime,  necessity,  they 
allow  the  number  of  the  dishonest  to  grow  larger.  As  Herz  ^ 
says:  "The  atavistic  forms  of  criminality  that  are  generally 
expressed  in  taking  advantage  of  an  offered  opportunity  and 
in  deeds  of  violence,  theft,  and  robbery,  are  directly  depend- 
ent on  the  price  of  food.  Those  offenses  that  are  better 
adapted  to  modern  conditions,  as  corrupt  in  purpose  but 
carried  out  by  more  civilized  means,  falsehood  and  deceit 
being  used  instead  of  violence,  have  left  this  primitive  de- 
pendence on  the  price  of  food  behind  them,  and  seek  their 
opportunity  in  the  complicated  life  of  the  modern  business 
world." 

If  theft  is  directly  dependent  on  economic  conditions, 
and  fraud  and  embezzlement  relatively  independent  of  them, 
owing  to  the  fact  that  two  of  the  important  causes  of  these 
latter  crimes  balance  each  other,  there  are  still  other  offenses 
the  figures  of  which  seem  to  be  a  reflection  of  those  relating 
to  theft.  Lafargue,^  whose  work,  in  spite  of  its  strikingly 
good  qualities,  is  biased,  says:  "The  material  prosperity  of 
capitalistic  society  is  marked  by  a  relative  decrease  in  the 
number  of  bankruptcies,  and  a  falling  off  of  criminality  in 
general,  on  the  one  hand,  and,  on  the  other,  by  an  increase 

*  Hugo  Herz,  "Die  Verbrechensbewegung  in  Osterreich  in  den  letzten 
80  Jahren  in  ihrem  Zusaramenhange  mit  wirtschaftlichen  Verhaltnissen " 
(MSchrKrimPsych.  II.  292). 

*  hoc.  cit.  p.  295. 


118  THE  SOCIAL  CAUSES  OF  CRIME  [§10 

in  the  number  of  cases  of  carnal  abuse  of  children,  which  be- 
come rarer  again  when  business  is  dull. . . .  The  rape  of  children 
is  a  characteristic  sign  of  the  prosperity  of  the  capitalistic 
mode  of  production."  The  fact  is  true,  and,  so  far  as  the 
bankruptcies  are  concerned,  also  its  interpretation.  But  the 
inference  regarding  the  crime  of  rape,  which  Lafargue  insin- 
uates and  Bebel  ^  openly  asserts  belongs  to  the  educated 
classes,  is  not  so.  I  do  not  know  where  Bebel  obtained  the 
figures  that  would  justify  him  in  stating  that:  "The  so-called 
'liberal  professions'  to  which  many  members  of  the  upper 
classes  belong,  are  responsible  for  about  5.6%  of  all  criminal 
offenses,  and  for  about  13%  of  all  the  criminal  assaults  on 
children."  As  a  matter  of  fact,  the  share  of  the  liberal  pro- 
fessions in  all  sexual  crimes  from  1890  to  1899  was  only  3.3%, 
while,  with  their  families,  they  composed  4%  of  the  population. 
The  agricultural  laborers,  on  the  other  hand,  committed 
22.6,  instead  of  15.6%,  of  the  rapes  and  indecent  assaults, 
workmen  in  industrial  occupations,  43.3,  instead  of  17%, 
and  this  is  quite  apart  from  the  workmen  whose  occupation 
was  not  given,  and  who  were  responsible  for  nine  times  as 
many  sexual  crimes  as  would  naturally  fall  to  the  proportion 
of  the  population  that  they  form.  Hence,  the  increase  in  these 
crimes  attendant  on  prosperity  must  be  laid  at  the  workmen's 
doors,  among  whom,  however,  I  should  not  in  general  include 
the  last-named  group.  We  shall  not  go  far  astray  in  connect- 
ing this  increase  with  the  greater  indulgence  in  alcohol  that 
goes  on  under  prosperous  conditions. 

The  significance  of  habitual  drinking  has  been  elsewhere 
discussed,  and  reference  made  to  assault  and  battery  com- 
mitted during  intoxication.  It  has  always  been  maintained 
that  prosperous  years,  involving,  as  they  do,  a  greater  con- 

1  August  Bebel,  "Die  Frau  und  der  Sozialismus,"  28th  ed.,  Stuttgart,  1897, 
p.  201. 


§  10]         ECONOMIC  AND  SOCIAL  CONDITION  119 

sumption  of  alcoholic  drinks,  bring  about  an  increase  in  the 
number  of  cases  of  assault  and  battery,  and,  similarly,  that 
good  grape  harvests  in  wine-drinking  countries,  like  France, 
are,  in  the  same  way,  detrimental  to  morality  in  general.^ 
This  is  perfectly  true  of  earlier  periods,  as,  for  instance, 
those  discussed  by  Laf argue  (Table  XX),  but  does  not  apply 
to  German  criminality  since  1882.  All  the  crimes  the  chief 
cause  of  which  we  have  found  to  be  alcohol,  such  as  aiding 
prisoners  to  escape,  resisting  an  oflBcer,  breach  of  the  peace 
("Hausfriedensbruch"),  simple  and  aggravated  assault  and 
battery,  malicious  mischief,  grow  more  frequent  from  year  to 
year. 

This  growth  corresponds  to  the  steady  increase  in  the  con- 
sumption of  alcohol,  —  not  of  spirits,  which  seems  to  have 
reached  its  maximum,  but  of  the  chief  beverage  of  the  Ger- 
man people,  beer.  In  1882,  only  84.8  litres  per  capita  of  the 
population,  including  women  and  children,  were  consumed, 
whereas  in  1900  this  figure  had  already  risen  to  125.0  litres; 
from  then  on,  there  is  a  decrease,  so  that  in  1908  the  consump- 
tion had  even  fallen  to  111  litres  per  capita.  The  consump- 
tion of  spirits  has  fallen  somewhat  since  the  last  decade  of  the 
last  century,  when  it  was  4.4-4.2  litres.  As,  however,  in 
1907-1908  it  was  3.8  litres,  the  decrease  is  but  slight. 

The  dam  formed  by  the  higher  cost  of  living  is  not  strong 
enough  to  stem  the  tide  of  alcohol.  The  sums  spent  for  drink 
do  not  affect  the  workman's  expenses  so  much  when  wages 
are  high  and  the  price  of  food  low.  But  the  figures  indicating 
the  consumption  of  alcohol  teach  us  that  he  does  not  save 
in  that  direction,  even  when  times  are  bad,  hence  the  evil 
consequences  of  excessive  drinking  appear  in  prosperous  and 
necessitous  times  alike. 

In  the  complicated  operation  of  an  industrial  State  victims 
1  Ferri,  loc.  cit. 


120  THE  SOCIAL  CAUSES  OF  CRIME  [§10 

are  not  lacking  who  are  ruined  because,  owing  to  lack  of  nat- 
ural capacity,  or  to  their  low  moral  and  intellectual  standards, 
or  to  their  life-long  habits,  they  are  unable  to  adapt  them- 
selves to  rapid  development  and  wide  fluctuations.  The 
same  thing  occurs,  in  agricultural  States,  to  the  farmer  who 
cannot  weather  the  crises  brought  about  by  bad  harvests, 
or  epidemics  among  his  stock,  and  to  the  agricultural  laborer 
who  cannot  tide  over  the  periods  when  wages  are  low.  The 
waves  meet  over  the  heads  of  the  socially  and  morally  weaker 
the  more  easily,  the  more  their  firmness  has  been  shaken 
by  crises  and  calamities. 

All  these  upsettings  of  the  social  balance  are  unavoidable  to 
a  certain  extent,  but  we  know — unfortunately,  better  in  theory 
than  in  practice  —  how  to  check  their  evil  consequences. 

Absolutely  different  soil,  however,  nourishes  the  artificial 
crisis,  the  strike.  This  means  of  improving  the  social  situa- 
tion has  been  used  more  and  more  frequently  in  recent  years. 
It  is  not  my  object  to  discuss  its  justification,  but  the  dangers 
to  society  that  strikes  involve  must  be  dealt  with. 

Where  there  is  strict  organization,  and  careful  leaders  are 
in  control,  there  will  be  but  few  crimes.  It  is  when  there  is  a 
preponderance  of  very  young  and  unmarried  workmen  that 
the  strike  becomes  a  grave  disaster.  While  fathers  of  families 
often  join  it  unwillingly,  the  young  men,  who  have  no  one 
to  consider  but  themselves,  are  all  fire  and  flame.  But  the 
most  dangerous  element  is  contributed  by  those  "workmen" 
of  whom  we  have  already  spoken,  men  who  are  masons, 
carpenters,  painters,  etc.,  only  when  strike  funds  are  being 
distributed.  It  is  they  who  rage  and  urge  the  others  on; 
they  are  the  leaders  in  the  excesses  committed,  in  attacks 
on  the  police  and  on  the  so-called  strike-breakers.  This  is 
especially  true  at  the  beginning  of  the  strike,  when  the  treas- 
ury is  still  full,  and  the  meetings  —  generally  held  in  public- 


§  10]         ECONOMIC  AND  SOCIAL  CONDITION  121 

houses  —  with  the  accompanying,  unavoidable  indulgence  in 
alcohol,  inflame  their  excited  minds  still  more.^ 

In  order  to  judge  aright  the  excesses  that  occur  during 
strikes,  it  is  essential  to  recognize  that  the  psychological  be- 
havior of  a  crowd  is  entirely  different  from  that  of  the  indi- 
viduals that  compose  it.  The  psychology  of  masses  has  been 
made  the  subject  of  a  valuable  study  by  Sighele.^  It  deals 
not  only  with  the  reaction  of  uneducated  crowds  to 
external  irritations,  but  also  with  the,  frequently  in- 
comprehensible, resolutions  of  legislative  bodies,  societies 
of  all  kinds,  scientific  and  political  meetings.  The 
critical  faculty  of  a  larger  number  of  people  is  not  only 
no  greater  than  that  of  each  one;  it,  on  the  contrary,  ceases 
to  act  altogether. 

A  phrase,  a  word,  uttered  at  the  right  moment,  the  enthu- 
siastic language  of  a  good  orator,  a  gesture  made  at  the  proper 
instant,  may  turn  a  perfectly  orderly  crowd  into  a  rabble  of 
criminals  ready  for  any  excess.  Women  being  more  impres- 
sionable than  men,  the  more  of  them  there  are  in  the  crowd, 
the  greater  is  the  danger,  especially  when  alcohol  brings  its 
influence  to  bear  on  the  excited  people,  embittered  by  care 
and  deprivations,  by  failures  and  inflammatory  speeches. 
If  the  spark  from  outside  flies  into  this  explosive  mass,  the 
mischief  is  done,  and  there  follow  the  senseless  excesses  of 
which  Hauptmann  in  "Die  Weber,"  and  Zola  in  "Germinal," 

^  How  clearly  this  has  come  to  be  recognized  is  shown  by  the  conduct  of 
the  great  strike  in  Rhenish  Westphalia,  where  the  leaders  warned  the  workmen 
against  any  alcoholic  excess.  Only  thus  was  it  possible  for  such  a  big  strike 
to  be  carried  out  so  quietly  and  peaceably,  though  some  credit  for  the  order- 
liness may  be  given  to  the  excellent  party  discipline.  The  same  thing  was  ex- 
perienced in  Sweden  at  the  time  of  the  universal  strike  in  1909.  Convictions 
for  crimes  of  violence  suddenly  ceased  almost  entirely,  thanks  to  the  leaders' 
order  to  the  workmen  to  stop  drinking  altogether. 

*  Sighele,  "Psychologic  des  Auflaufs  und  der  Massenverbrechen,"  trans- 
lated by  KureUa,  Dresden  and  Leipzig,  1897,  Carl  Ueissner. 


122  THE  SOCIAL  CAUSES  OF  CRIMES  [§10 

have  given  a  literary  account,  while  Sighele  has  given  a 
scientific  one. 

The  man  who  takes  part  in  such  excesses  may  in  himself 
be  perfectly  respectable  and  harmless,  even  timid,  but  his 
individuality  is  lost  in  the  mass;  calm  consideration  vanishes, 
and,  carried  away  by  the  leveling  influence  of  the  crowd, 
the  deliberate  man  becomes  an  excited  brute.  We  may  regret 
these  sad  consequences  of  the  "psychology  of  the  mass," 
but  we  carmot  shut  our  eyes  to  the  fact  that  the  subjective 
culpability  of  the  individual  in  strike  disorders  is  often  ex- 
ceedingly small.  The  necessity  for  repression,  however, 
remains  unaltered  by  this  recognition. 


PART  II 

THE   INDIVIDUAL  CAUSES  OF  CRIME 

§  11.  In  General 

Some  authors  look  upon  the  social  condition  of  the  popu- 
lation as  the  chief  cause  of  all  crime,  so  much  so  that  they 
believe  that  "  putting  an  end  to  poverty  is  the  one  and  only 
means  of  effectually  repressing  crime  and  prostitution."  ^ 
Garofalo  ^  looks  at  the  matter  from  an  entirely  different 
point  of  view.  He  compares  criminality  to  the  sea,  that, 
whether  the  tide  be  high  or  low,  always  contains  the  same 
amount  of  water.  So,  too,  criminal  inclination  remains  the 
same,  and  it  is  only  the  manner  in  which  it  finds  expression 
that  differs  in  summer  and  winter,  in  times  of  prosperity  and 
in  periods  of  need. 

The  truth  probably  lies  somewhere  between  these  two  ex- 
tremes. Poverty  and  distress  is  one  of  the  sources  of  crime, 
a  source  that  flows  the  more  freely,  the  wider  the  circles  of 
the  population  that  are  affected  by  the  economic  depres- 
sion. But  as  soon  as  a  period  of  prosperity  sets  in,  another 
source  gushes  out  with  increased  force,  alcoholism  and  its 
consequences.  But  the  criminals  who  sit  in  the  dock  at  these 
two  times  are  not  the  same.  Prosperity  does  not,  as  a  rule  at 
least,  turn  the  man  of  dishonest  ways  into  one  who  stabs 
and  disturbs  the  peace,  nor  does  the  hero  of  the  street  turn  to 
theft  if  he  is  in  needy  circumstances. 

'  Paul  IJirsch,  "Verbrechen  und  Prostitution  als  soziale  Krankheitser- 
scheinungen,"  Berlin,  1897,  Th.  Glockc,  p.  66. 

*  Garofalo,  "La  criminologie,"  Paris,  1895,  Felix  Alcan,  p.  189. 


124  THE  INDIVIDUAL  CAUSES  OF  CRIME         [§  12 

At  every  turn  of  the  social  balance  a  number  of  individuals 
slip  overboard  and  sink  into  the  depths  of  crime.  One  thing 
is  common  to  them  all,  the  lack  of  sufficient  power  of  resist- 
ance against  temptation.  It  is  the  social  causes  that  urge 
towards  crime,  but,  while  a  large  portion  of  mankind  is  able 
to  retain  its  balance,  another  portion  succumbs,  sooner  or 
later.  Hence  we  must  consider  what  the  qualities  of  the  in- 
dividual are  that  weaken  his  power  of  resistance  to  such  an 
extent  that  he  becomes  a  criminal. 

The  individual  causes  of  crime  frequently  overlap  the  social 
causes  already  discussed.  It  should,  therefore,  be  clearly 
understood  that  there  is  often  no  sharply  defined  boundary 
between  external  and  internal  causes.  Many  individual  quali- 
ties are  the  result  of  social  conditions,  and  much  that  has  al- 
ready been  dealt  with,  as,  for  instance,  the  fluctuations  in 
offenses  against  chastity,  could  as  well  be  included  in  what 
follows. 

§  12.  Parentage  and  Training 

Nothing  will  thrive  in  stony  soil,  and  the  seed  need  not  be 
poor  to  end  in  failure.  It  is  similar  with  the  development 
of  the  criminal  man.  This  comparison  does  not  exclude  the 
influence  of  natural  disposition,  but  this  influence  cannot  be 
separated  from  the  bad  effects  of  training,  or  rather  the  lack 
of  training,  and  from  the  results  of  evil  example  and  social 
distress. 

We  cannot  doubt  that  mental  disease,  intemperance, 
and  epilepsy  in  the  parents  have  a  degenerative  influence  on 
their  children.  As  far  as  intemperance  is  concerned,  I  have 
already  dealt  with  the  question.  The  forms  of  degeneration 
are,  in  general,  physical  and  mental  inferiority,  though  ex- 
perience shows  that  not  all  the  children  of  drunkards  and 
insane  persons  have  these  defects. 


§12] 


PARENTAGE  AND  TRAINING 


125 


Every  attempt  to  express  this  in  figures  is  rendered  futile  by 
the  elasticity  of  the  term  heredity,"  some  scientists  regarding 
insanity  as  inherited  only  if  it  has  appeared  in  the  parents, 
and  others  being  satisfied  if  any  relative  was  thus  afflicted; 
some  considering  a  slight  nervous  affection  sufficient,  others 
only  pronounced  mental  disease.  It  has,  therefore,  even 
been  proposed  to  call  the  tendency  to  psychic  diseases  merely 
"family  disposition." 

TABLE  XXn 

(After  Kurella.) 
Disease  and  Criminality  in  the  Parents  of  Criminals 


Cbiminalitt 

Insanity 

Epilepst 

Drunkenness 

1 

< 
M 
o 

a5 

i 

•< 

< 

z. 
a 

<! 

0 
OS 

< 

z 

Ed 

a 

s 

m 

Ah 

All  criminals  examined 

Criminals  convicted  of 

indecent  crimes    .    . 

Perjurers 

Swindlers 

Thieves 

Murderers 

% 
43.7 

57.3 
23 
34.8 
20.9 

% 

4 

3 

6.6 
3.7 
7.5 

% 
17.6 

% 
6.7 

8.6 

6.6 
5.4 

% 
12.6 

10.3 

16.4 
14 

7c 
L8 

% 

1.7 

1.2 

2 
2.1 

% 

2.7 

1.3 
3.3 

7.5 

_ 

% 

8 

% 

16.2 

14.2 
11.1 
13.3 
14 

% 

46 

43.6 

28 
27.1 

c 

/ 

3 

[) 

If  it  is  difficult  to  establish  the  influence  of  heredity  in  those 
who  are  mentally  diseased,  it  is  much  more  so  in  criminals, 
who,  moreover,  often  know  little  of  their  progenitors,  and 
whose  fathers,  in  the  case  of  illegitimate  children,  are  en- 
tirely unknown.  The  figures  in  Table  XXII  are  given  merely 
to  show  how  uncertain  the  results  of  investigations  of  heredity 
are,  and  not  as  a  measure  of  congenital  disposition. 

The  frequency  with  which  the  psychic  anomalies  of  the 
parents  appear  in  the  children,  and  the  form  they  take,  show 


*  1714  criminals  exclusive  of  homicides. 

*  607  criminals. 


'  560  criminals. 


126  THE   INDIVIDUAL  CAUSES  OF  CRIME        [§  12 

such  variation  in  the  figures  of  different  writers  that  I  will 
not  do  more  than  speak  of  the  fact,  without  drawing  conclu- 
sions from  it. 

Hartmann  ^  has  made  a  very  careful  study  of  the  significance 
of  heredity.  For  the  purpose  of  comparing  hereditary  influ- 
ences in  insane  and  normal  persons,  he  was  able  to  use  the 
studies  of  Diem  and  Koller,  which,  like  his  own,  were  made 
under  Bleuler's  guidance,  and  this  has  added  to  the  value  of 
his  work.  Among  199  criminals,  Hartmann  found  hereditary 
defects  in  69.8%,  whereas  Koller  discovered,  among  1850 
insane  persons,  72.2%,  and,  among  370  healthy  persons, 
59%,  with  inherited  predispositions.  But  Koller,  like  Diem, 
who  found,  among  1192  healthy  persons,  76.4%  with  heredi- 
tary tendencies,  included  apoplexy  as  a  hereditary  factor. 
Especially  noteworthy  is  the  difference  that  appears  as  soon 
as  heredity  in  the  direct  line  is  considered  —  that  is,  through 
the  member  of  the  family  that  is  most  closely  related  —  and 
the  number  of  hereditary  defects.  When  this  is  done,  we  find 
that  criminals  are  nearer  to  the  insane  than  to  normal  persons 
as  regards  direct  heredity  and  the  frequency  of  hereditary 
defects.  But  —  and  this  seems  to  me  of  the  greatest  impor- 
tance —  the  predisposition  transmitted  by  the  parents  does 
not  weigh  as  heavily  as  is  generally  supposed;  the  number  of 
healthy  persons  who  are  threatened  by  hereditary  stigmata 
of  degeneration  is  too  large  for  that. 

Hartmann  found  inherited  criminality  in  32.7%  of  the  crim- 
inals he  examined,  considerably  more  than  Penta  and  Marro, 
but  less  than  Sichart,^  who  found,  in  Wiirttemberg,  that,  among 
1714  criminals,  43.7%  had  criminal  parents.  Is  it  a  question 
of  the  direct  inheritance  of  the  inclination  to  commit  unlawful 

'  Hartmann,  "Uber  die  hereditaren  Verhaltnisse  bei  Verbrechem"  (MSchr. 
Krim.  Psych.  I.  483). 

*  Sichart,  "Uber  individuelle  Faktoren  des  Verbrechens"  (ZStW.  X,  36). 


§  12]  PARENTAGE  AND  TRAINING  127 

acts?  Kurella  thinks  it  is,  but  I  cannot  agree  with  him. 
I  do  not  believe  that  we  are  justified  in  attaching  too  much 
importance  to  this  kind  of  transmission,  just  as  we  should 
not  regard  as  too  significant  the  not  infrequent  fact  that  whole 
families,  even  whole  localities,  are  distinguished  by  intense 
criminal  activity.  A  child  that  is  surrounded  by  criminals  in 
its  earliest  youth  soon  learns  to  think  like  them,  and  never  has 
the  chance  to  develop  other  views.  Crime  loses  its  character 
as  a  reprehensible  act,  and  punishment  its  disgrace;  at  most, 
the  latter  is  regarded  as  an  unavoidable  disadvantage  con- 
nected with  the  occupation.  I  may  surely,  therefore,  dispense 
with  further  descriptions  of  the  notorious  Juke  family,^ 
with  its  widespread  army  of  criminals,  prostitutes,  and  de- 
fectives, or  of  other  similar  criminal  families. 

In  Sighele's  ^  interesting  study  of  the  former  ecclesiastical 
State,  Artena,  Kurella '  finds  a  proof  of  the  inheritability  of 
crime.  In  1557  Paul  IV  outlawed  all  the  inhabitants  of 
Artena,  the  refuge  of  mischievous  rogues,  and  gave  anyone 
the  right  to  destroy  the  place.  Yet,  as  late  as  between  1875 
and  1887,  the  relative  number  of  robberies  in  Artena  was  30 
times  as  great  as  in  the  rest  of  Italy,  and  the  number  of  mur- 
ders, homicides,  and  assaults,  from  six  to  seven  times  as  great. 
One  of  the  families  there,  the  Montefortinos,  maintained  its 
reputation  for  crime  through  three  centuries.  And  yet  even 
this  high  degree  of  criminality,  that  remained  unchanged  for 
centuries,  does  not  prove  the  hereditary  character  of  crimin- 
ality itself.  It  may  equally  as  well  be  attributed  to  the  unfortu- 
nate force  of  example,  that  smothered  good  impulses  before 
they  could  be  developed. 

'  Dugdale,  "The  .Jukes.  A  Study  in  crime,  pauperism,  disease,  and  hered- 
ity," New  York,  1877,  Putnam. 

*  Sighele,  "Un  paese  di  delinquenza"  (Arch,  di  psich.  e  d'antropol,  XI, 
1890,  p.  441). 

'  Kurella,  "  Naturgeschichte  des  Verbrechens,"  1893,  p.  144. 


128  THE  INDIVIDUAL  CAUSES  OF  CRIME         [§12 

We  might  obtain  certain  proof  by  means  of  one  experiment: 
educating  the  healthy  children  of  criminals  in  good  surromid- 
ings,  in  ignorance  of  their  descent,  and  then  observing  whether 
they  showed  criminal  tendencies.  This  proof  cannot  be  easily 
secured.  The  occasional  tales  that  we  hear  of  the  breaking 
out  of  gypsy  instincts  after  years  of  repression  may  well  be 
banished  to  the  realm  of  romance;  they  are  not  to  be  taken 
seriously. 

The  principal  reason  why  such  experiments  would  not 
succeed  is,  that  the  children  of  degenerate  parents,  though 
free  perhaps  from  congenital  criminal  tendencies,  are  so  often 
physically  and  mentally  inferior.  Very  interesting  in  this 
connection  is  a  psychiatrical  study  made  by  Monkenmoller.^ 
He  examined  200  children  in  the  Home  for  Neglected  Children 
in  Lichtenberg,  belonging  to  the  city  of  Berlin,  among  whom 
there  were  134  that  were  guilty  of  some  offense.  Of  the  200 
boys,  not  fewer  than  68  were  feeble-minded;  and  even  the 
others  showed  such  inferior  mental  ability  that  the  institution 
was  unable  to  maintain  a  class  that  would  correspond  to  the 
highest  class  in  the  grammar  school.  Besides  imbecility, 
he  found  epilepsy,  hysteria,  mental  disease;  in  short,  after 
subtracting  all  those  with  mental  defects,  there  remained  only 
73,  including  10  epileptics,  who  were  reasonably  intelligent, 
and  83  normal  children.  Monkemoller  adds:  "And  yet, 
as  often  as  I  recall  my  notes  on  these  normal  children,  I 
cannot  help  thinking  that  even  this  number  is  too  high,  and 
that,  if  I  could  have  observed  them  carefully  for  a  longer 
period,  especially  if  it  were  a  question  of  pronouncing  them 
responsible  in  the  sense  that  the  word  is  used  in  §  51  of  the 
Penal  Code,  there  would  be  still  more  that  could  not  be  classi- 
fied under  this  head." 

'  Monkemoller,  "  Psychiatrisches  aus  der  Zwangserziehungsanstalt"  (Allg. 
Zeitschrift  fiir  Psychiatric,  LVI,  p.  14). 


§  12]  PARENTAGE  AND  TRAINING  129 

The  cause  of  this  alarmingly  large  number  of  mentally 
defective  children  has  little  to  do  with  the  neglect  of  their 
training  and  instruction,  for  it  is  clear  that  those  classed  as 
imbeciles  are  judged,  not  by  the  knowledge  they  possess, 
but  by  their  ability  to  learn.  We  must,  therefore,  regard  this 
deficient  or  defective  mentality  as  an  inheritance  from  the 
parents.  MonkemoUer's  figures  support  this  view.  In  85 
cases,  either  the  father  or  the  mother,  or  both,  were  drunk- 
ards; in  24,  insane;  in  26,  epileptics;  and  in  as  many  cases, 
afflicted  with  some  other  severe  nervous  disease. 

In  all  but  a  few  cases,  the  State  education  of  these  children 
had  been  ordered,  because  of  the  criminal  tendencies  they 
displayed.  In  view  of  their  mental  inferiority,  we  cannot 
entertain  very  high  hopes  of  the  success  that  it  is  possible  to 
attain  with  them.  But  the  majority  of  adult  criminals  are 
equally  inferior  in  mind,  which  accounts  for  the  imbecility 
and  mental  anomalies  that  are  so  common  among  them. 

This  makes  it  possible  to  dispense  with  the  hypothesis 
that  criminal  tendencies,  like  artistic  talents,  for  instance, 
are  transmitted  from  parents  to  children,  I  expressly  say  that 
we  can  dispense  with  it,  for  it  cannot  be  refuted  or  proved. 
The  one  fact  that  we  can  establish  with  certainty  is,  that  the 
inheritance  of  the  children  of  drunkards,  insane  persons,  and 
epileptics  consists  of  physical  and  mental  inferiority. 

When  the  children  come  from  degenerate  or  criminal  fam- 
ilies, there  is  added  to  this  inferiority  the  danger  that  lies  in 
its  further  development. 

They  lack,  first  of  all,  home  training.  A  not  inconsiderable 
number  of  them  are  illegitimate,  though  the  figures  that  would 
indicate  just  how  many  vary  tremendously.  Of  the  convicts 
that  Sichart  ^  examined  in  Wiirttemberg,  27%,  of  those  that 

^  Sichart,  "t)ber  individuelle  Faktoren  des  Verbrechens"  (ZStW.  X, 
86). 


130 


THE  INDIVIDUAL  CAUSES  OF  CRIME 


[§12 


Guillaume  ^  saw  in  the  penitentiary  in  Bern,  14%,  were  of 
illegitimate  birth.  Among  413  male  prisoners  in  Halle  whose 
sentences  were  all  for  six  months  or  over,  I  found  that  8.9% 
were  illegitimate.  Experience  proves  this  to  be  about  the 
average  number. 

The  figures  given  in  the  Prussian  statistics  of  penal  insti- 
tutions ^  are  reproduced  in  Table  XXIII. 


TABLE  XXIII 

Percentage  op  Inmates  of  Illegitimate  Birth 


Penitentiabies 
1891-1900 

Houses  of  Coebection 
1896-1900 

Refobu  Schools 
1895-1900 

Male 

Female 

Male 

Female 

Male 

Female 

8.5 

10.2 

8.3 

12.5 

11.6 

15.1 

In  1899,  9%  of  all  the  births  in  Germany  were  illegitimate. 
In  order  to  understand  why  a  smaller  percentage  of  the  con- 
victs are  of  illegitimate  birth,  we  must  remember  how  great 
the  mortality  is  among  the  children  that,  owang  to  their 
illegitimacy,  lack  proper  care.  In  Prussia,  from  1875  to  1899, 
of  100  illegitimate  children,  35.34%  died  in  their  first  year, 
whereas  among  legitimate  children  the  percentage  was  only 
19.24.  This  greatly  alters  the  proportion  to  the  whole  popu- 
lation of  those  who  are  of  illegitimate  birth.  Up  to  the  com- 
pletion of  the  nineteenth  year  the  percentage  of  illegitimate 
children  sank  from  15.65  In  the  first  year  of  life  to  4.1.^  Thus 
we  see  that  the  rate  of  mortality  continues  to  be  higher  among 

1  Guillaume,  "Die  Insassen  der  Beraer  Strafanstalten  iind  ihre  Jugender- 
ziehung." 

2  "Statistik  der  zum  Ressort  des  Kgl.  preuss.  Ministeriums  des  Innem 
gehorenden  Strafanstalten  und  Gefangnisse."  Berlin,  Druckerei  der  Strafan- 
staltsverwaltung. 

*  Klumker  und  Spann,  "Die  Bedeutung  der  Berufsvormundschaft  fvir  den 
Schutz  der  unehelichen  Kinder,"  Dresden,  1905,  p.  21. 


§12] 


PARENTAGE  AND  TRAINING 


131 


them  throughout  childhood.     This  fact  should  be  borne  in 
mind  in  judging  the  figures  given  in  the  table. 

The  unfavorable  economic  situation  of  unmarried  mothers, 
their  difficult  social  position,  and  the  lack  of  normal  family 
life,  combine  to  make  the  training  that  illegitimate  children 
receive  inadequate  in  every  direction. 


TABLE  XXIV 


Peb  100  Convicts 

Education 

Male 

Female 

Legitimate 

Illegitimate 

Legitimate 

Illeqitimatb 

Good       

35 

54 

8 

3 

9 
60 

27 
4 

26 
52 
21 

1 

5 

Deficient 

Poor 

Unknown    

74 
21 

These  figures  of  Guillaume's  show  clearly,  how  greatly  the 
development  of  illegitimate  children  suffers,  especially  in 
comparison  with  that  of  legitimate  children.  At  the  same  time 
they  afford  us  a  deep  insight  into  the  education  of  all  crim- 
inals, and  show  what  share  bad  or  inadequate  training  has 
in  the  genesis  of  crime.  This  is  made  most  apparent  by  the 
rarity  of  good  training  among  female  delinquents,  which  seems 
to  be  almost  a  condition  of  the  adoption  of  a  criminal  career. 

The  result  of  the  investigation  of  the  degree  of  education 
possessed  by  the  inmates  of  Prussian  penal  institutions  appears 
in  the  same  light. 

The  care  with  which  the  degree  of  education  is  ascertained 
varies  greatly  in  the  different  institutions,  otherwise  the  com- 
paratively low  percentage  of  tramps,  beggars,  and  prosti- 
tutes who  are  uneducated  or  deficient  in  education,  directly 
contradicting  what  other  experience  teaches  us,  would  be 
quite  incomprehensible.     Hence,  on  account  of  the  method 


132 


THE  INDIVroUAL  CAUSES  OF  CRIME 


[§12 


used  in  obtaining  them,  the  statistics  of  the  abihties  of  the 
inmates  of  Prussian  special  State  schools  ("  Zwangserzie- 
hungsanstalten"),  at  the  time  of  entrance,  are  more  valuable. 
The  disappointing  result  obtained  by  the  intelligence  test 
("  Intelligenzpriif  ung ")  among  inmates  of  these  schools 
shows  to  suflBciency  how  low  the  average  knowledge,  that 
most  external  of  all  marks  of  education,  is,  and  how  diflficult 
the  struggle  for  existence  thus  becomes  for  such  children. 

TABLE  XXV 

Schooling  among  the  inmates  of: 


Penitentiabies 
1891-1900 

CoBBECTivE  Institutions 
1896-1900 

Male 

Feuale 

Male 

Fekale 

Without      

Deficient 

Grammar  School 

Higher  Schools      

6.9 
52.2 
39.4 

1.5 

16.5 

51.8 

31.2 

0.5 

2.8 

8.8 

86.9 

1.5 

7.2 
11.2 
81.3 

0.3 

We  shall  not  err  in  assuming  that  a  part  of  these  youthful 
offenders,  even  with  the  most  careful  education,  would  never 
be  able  to  master  the  complete  grammar  school  course  ("  Volks- 
schule"),  owing  to  deficient  mental  ability;  perhaps  —  at 
least  it  might  be  so  assumed  from  Monkemoller's  experience  — 
this  is  true  of  the  majority.  On  the  other  side,  even  when  the 
mentality  is  low,  careful  individual  education  and  training 
often  do  wonders,  as  is  shown  by  observation  in  institutions 
for  imbeciles,  and,  on  a  somewhat  higher  plane,  schools  for 
feeble-minded  children.  All  these  possibilities  are  seldom  used 
in  the  training  of  those  children  who  form  the  majority  of 
early  offenders. 

Indeed,  how  can  they  be,  when  the  father,  and  generally 
also  the  mother,  work  away  from  home  from  early  till  late. 


§12] 


PARENTAGE  AND  TRAINING 


133 


and  the  children  must  thus  be  left  to  their  ungoverned  im- 
pulses and  the  influences  of  the  street?  It  may  be  considered 
a  fortunate  case  if  the  parents  even  attempt,  in  the  hours  that 
remain  to  them,  to  train  the  children.  But  even  that  is  rare. 
An  examining  judge  in  Paris,  Albanel,^  found  that,  among 

TABLE  XXVI 

Education  of  Minors  on  Entering  the  Reform  Schoous 
("  ftjrsobgeerziehungsaustalten  ") 

(Taken  from  the  "Statistik  iiber  die  FUrsorgeerziehung  Minderwertiger," 
1908,  p.  61.) 

Of  100  pupils  over  12  years: 


There  had 

Complete 

Grammar 

School 
Education 

0 

o 
o  w  .. 
"  o  Z 

w^  o 

a§5 

«  a  o 

W  •-;  Q 

Haw 

There  could 
Read,  Write, 
and  Reckon 
WITH  Figures 
UP  to  100 
Satisfactorily 

There  codld 
Read,  Write, 
AND  Reckon 
WITH  Figures 
UP  TO   100 
Imperfectly 

Q 

■<; 

M 
a 

OS 

a 
5 

been  to 
School,  but 
could  not 
Read,  Write, 
or  Reckon 

a 
« 
a  o 

1908 

47.2 

0.3 

39.6 

2.4 

10.4 

0.1 

1907 

44.7 

0.4 

40.9 

3.0 

10.8 

0.2 

1906 

42.6 

0.4 

43.0 

2.6 

11.2 

0.2 

1905 

41.3 

0.4 

42.2 

2.0 

13.9 

0.2 

1904 

41.9 

0.4 

43.9 

1.5 

12.1 

0.2 

1903 

39.5 

0.3 

43.5 

2.3 

13.8 

0.6 

1902 

39.9 

0.4 

41.7 

4.2 

13.5 

0.3 

1901 

36.0 

0.2 

40.3 

6.8 

16.5 

0.2 

600  criminals  under  twenty  years  of  age,  in  303  cases  the 
family  life  of  the  parents  was  destroyed  owing  to  death, 
divorce,  desertion,  illicit  relations,  or  to  some  similar  cause. 
What  the  training  of  children  is  under  such  conditions  can 
be  easily  imagined. 

In  addition  to  evil  propensity  and  inadequate  education, 
the  most  dangerous  source  of  the  criminal  attitude  is  the 
mfluence  of  environment.     According  to  Ferriani,^  of  2000 

*  Albanel,  "Le  crime  dans  la  famille,"  1900,  p.  27. 

*  Ferriani,  "  Minderjahrige  Verbrecher,"  1896,  p.  76. 


134  THE  INDIVIDUAL  CAUSES  OF  CRIME         [§  12 

convicted  minors,  701  came  from  families  with  bad  reputa- 
tions, 169  from  those  of  questionable  fame,  and  53  from  homes 
that  were  described  as  "utterly  depraved."  Among  my 
prisoners  14.4%  had  relatives  who  had  been  convicted.  I  am 
convinced  that  the  percentage  is  really  much  higher,  for  many 
of  the  prisoners  questioned,  intentionally  or  from  ignorance, 
probably  gave  wrong  information.  Among  the  inmates  of  the 
corrective  department  for  youthful  offenders  in  the  prison  at 
Lyons,  Raux  ^  found  that  13%  had  been  directly  induced  by 
their  parents  to  commit  crimes. 

Accurate  statistics,  however,  are  scarcely  necessary.  The 
simplest  consideration  of  the  subject  imperatively  forces  us 
to  the  conclusion  that  only  an  intelligent  person  of  particu- 
larly firm  character  can  withstand  for  long  the  influence  of  a 
vicious  environment. 

Investigations  of  living  conditions  reveal  a  positively  hor- 
rible state  of  wretchedness,  both  in  cities  ^  and  in  rural  dis- 
tricts.^ The  living  together  in  close  quarters,  even  sleeping 
together,  of  adults  and  children,  of  parents  and  lodgers, 
must  arouse  sexual  instincts  at  an  early  age.  The  mode  of 
life  becomes  so  much  the  more  dangerous,  the  less  restrained 
the  passions  of  the  adults  are,  —  particularly  so,  in  the  case 
of  criminals  and  prostitutes. 

A  child  that  grows  up  among  thieves  and  vagabonds,  prosti- 
tutes and  drunkards,  forms  his  range  of  ideas  after  that  of 
those  about  him,  and  scarcely  requires  special  instruction  in 
order  to  act  first  as  assistant,  then  as  participant,  in  the  exe- 
cution of  the  family's  criminal  plans. 

When  necessity  is  added  to  all  these  things,  the  final  hold 


*  Joly,  "L'enfance  coupable,"  1904,  p.  39. 

2  Elisabeth  Gnauck-Kiihne,  "Schmollers  Jahrbuch,"  N.  F.  XX,  2nd  Heft. 

*  H.  Wittenberg,  "Die  geschlechtlich-sittlichen  Verhaltnisse  der  evangeli- 
Bchen  Landbewohner  im  Deutschen  Reiche." 


§  12]  PARENTAGE  AND  TRAINING  135 

is  lost.  Of  Ferriani's  2000  minor  criminals,  1758  lived  in 
miserable  poverty.  If  this  lack  of  means  is  out  of  all  propor- 
tion to  the  need  of  necessary  food,  it  is  much  more  so  in  regard 
to  the  uncontrolled  desire  for  comforts  or  luxuries.  Early 
accustomed  to  drink,  associating  with  prostitutes  from  the 
time  that  sexual  instincts  first  become  active,  uninfluenced 
by  school-life,  and,  with  defective  intelligence,  unchecked  by 
fear  of  punishment  and  sober  consideration  of  the  advantages 
and  disadv-antages  of  a  criminal  career,  —  that  is  the  picture 
presented  by  the  inner  life  of  those  who  come  from  depraved 
families  and  corrupt  environment. 

The  attempt  to  snatch  a  valuable  member  of  human  society 
out  of  this  slough  has  no  prospect  of  success,  unless  it  is  made  as 
early  as  possible,  before  evil  example  has  had  time  to  exert 
its  influence.  But  we  may  hope  to  see  our  efforts  rewarded 
if  suitable  education  and  training  is  begun  in  very  early 
youth,  and  if  we  can  prevent  the  child's  return  to  the  old, 
miserable  conditions;  this,  of  course,  within  the  limitations 
that  mental  and  physical  disposition  impose.  The  low  grade 
of  intelligence,  and  the  defects,  such  as  deformity,  epilepsy, 
hysteria,  and  similar  things,  under  which  degenerate  children, 
particularly  the  children  of  drunkards,  have  to  suffer,  force 
them  down  to  a  lower  social  plane,  into  the  ranks  of  the  day 
laborers  and  unskilled  workmen,  and  thus  into  circles  in  which 
alcoholism  menaces  them  anew. 

In  spite  of  this  gloomy  perspective,  everything  possible 
must  continue  to  be  tried,  in  order  to  save  at  least  a  part  of 
these  imperilled  children.  We  shall  probably  fight  in  vain 
against  what  is  due  to  natural  bent  or  disposition,  but  not 
against  what  is  merely  the  external  consequence  of  descent. 


136  THE  INDIVIDUAL  CAUSES  OF  CRIME         [§  13 

§  13.  Education 

The  low  grade  of  mentality  found  in  the  average  criminal 
dims  the  optimistic  hopes  that  were  formerly  entertained  of 
the  good  results  to  be  obtained  by  increasing  education  among 
the  people.  It  was  believed  that  in  this  way  even  the  lower 
classes  could  be  given  a  better  understanding  of  the  necessity 
for,  and  the  requirements  of,  a  regulated  legal  State.  "To 
instruct  is  to  raise  morality."  Engel  ^  sought  to  prove  the 
truth  of  this  principle  by  the  fact,  that  in  the  Department 
Calvados,  in  France,  public  instruction  cost  20.3  centimes  per 
person,  while  justice  cost  17.4;  in  Bouche  du  Rhone,  on  the 
contrary,  only  16.4  centimes  were  expended  for  instruction, 
and  30  for  justice.  Thus,  he  asserted,  every  expenditure  in  the 
budget  of  instruction  would  be  abundantly  balanced  by  the 
savings  in  that  of  criminal  justice.  Levasseur's  ^  statistics 
confirm  this  view;  from  1827  to  1877  the  number  of  those  who 
were  entirely  uneducated  fell,  among  the  recruits,  from  56 
to  16%;  among  the  criminals,  from  62  to  31%.  Thus,  it  ap- 
pears that  the  uneducated  show  a  greater  inclination  towards 
crime  than  the  educated. 

This  is  quite  comprehensible,  for  his  knowledge  gives  the 
educated  man  a  great  advantage  over  the  one  who  is  unedu- 
cated. He  is  able  to  find  work,  to  obtain  a  livelihood,  where 
ignorance  makes  it  impossible  for  the  uneducated  man  to 
do  so.  The  farmer  who  has  known  how  to  take  advantage  of 
the  progress  of  technical  science  will  be  able,  under  the  same 
conditions,  to  obtain  a  yield  from  his  property,  even  in  times 
when  the  old-fashioned  farmer  stands  face  to  face  with  ruin. 
The  position  of  the  uneducated  man  is  equally  unfavorable 
in  all  fields,  and  this  increases  the  danger  of  his  falling  into 
crime. 

*  Cited  by  Oettingen,  p.  598. 

»  Ibid.,  p.  600. 


§  13]  EDUCATION  137 

The  disadvantage  of  slight  education  lies  in  this,  that  the 
man  is  thus  placed  in  a  more  difficult  social  position,  is  more 
liable  to  economic  poverty  and  dependence.  Thus  we  can 
understand  why  it  is  that,  by  simply  raising  the  standard  of 
education,  we  are  by  no  means  able  to  do  away  with  any 
considerable  number  of  crimes.  If  the  intellectual  level  of  a 
nation  is  raised,  the  differences  still  remain  unchanged;  the 
man  with  less  education  will  always  fall  behind  the  man  with 
more.  In  Germany,  the  number  of  the  illiterate,  that  is,  of 
those  who  can  neither  read  nor  write,  has  fallen  extraordi- 
narily. In  1875,  among  the  recruits,  there  were  still  2.37% 
illiterates,  in  1890  only  0.5%,  and  in  1908  the  number  of  those 
who  could  neither  read  nor  write  had  sunk  to  0.02%.  The 
number  of  persons  convicted,  however,  has  increased  more 
rapidly  than  the  population,  even  as  regards  those  crimes  the 
legal  judgments  of  which  have  not  altered  in  all  these  years. 
Hence,  in  spite  of  increased  education,  we  have  no  improve- 
ment in  legal  security. 

No  statistical  proof  of  the  influence  of  education  on  crim- 
inality can  ever  be  brought.  The  simplest  elementary 
knowledge  is  by  no  means  a  sign  of  education,  intellectual 
attainment  no  measure  of  the  development  of  altruistic  ideas. 
But  —  and  this  too,  unfortunately,  needs  to  be  expressly 
mentioned  —  there  can  also  be  no  proof  to  the  contrary. 
The  simple,  childlike  view,  that  the  degree  of  education  ob- 
tained in  the  lower  schools  menaces  the  harmless,  deeply 
moral,  mode  of  thought  of  the  people,  this  sentimental  glori- 
fication of  the  people  in  their  primitive  state,  is  based  on  en- 
tirely vague  and  unfounded  prejudices.  It  is  not  increasing 
education  that  causes  the  growth  of  crime,  but  the  changes 
that  have  taken  place  in  all  external  conditions  in  the  course 
of  the  last  centuries. 

If  instruction  has  any  influence  at  all  on  criminality,  this 


138  THE  INDIVIDUAL  CAUSES  OF  CRIME         [§13 

influence  probably  shows  itself  in  the  kind  of  crime  committed. 
It  is  clear  that  no  illiterate  can  forge  documents,  nor  commit 
a  crime  in  office  ("Verbrechen  im  Amte").  A  complete 
failure  to  perceive  the  cause  and  the  accompanying  phenome- 
non must  have  led  Lombroso^  to  say:  "However,  if  education 
is  valuable  for  the  population  in  general,  it  nevertheless 
ought  not  to  be  extended  to  the  inmates  of  prisons,  unless  it 
is  accompanied  by  a  special  training,  designed  to  correct  the 
passions  and  instincts,  rather  than  to  develop  the  intellect. 
Elementary  education  is  positively  harmful  as  applied  to  the 
ordinary  criminal;  it  places  in  his  hands  an  additional  weapon 
for  carrying  on  his  crimes,  and  makes  a  recidivist  of  him. 
The  introduction  of  schools  into  the  prison  .  .  .  explains, 
to  my  mind,  the  great  number  of  educated  recidivists." 
And  in  another  place:"  "To  instruct  the  criminal  means  to 
perfect  him  in  evil"!  Not  because  of  instruction,  but  in  spite 
of  it,  the  relapse  takes  place.  Without  doubt,  the  technical 
knowledge  that  a  criminal  has  obtained  in  prison  may  be  of 
use  to  him  in  a  burglary  or  a  falsification;  but  it  is  then  just 
as  certain  that,  without  these  newly  acquired  capabihties, 
he  would  have  relapsed.  To  many  others,  however,  the 
knowledge  gained  in  prison,  and  the  training  in  some  trade, 
have  meant  the  possibility  of  getting  on  better  in  the  world 
after  their  discharge,  and  in  this  way,  some,  at  least,  have 
been  preserved  from  an  otherwise  certain  relapse  into  crime. 
Knowledge  and  capabilities  are  always  a  mighty  protection 
and  a  strong  weapon  in  the  struggle  for  existence,  but  only  for 
the  individual.  The  general  increase  in  education,  especially 
within  the  limited  sphere  of  the  average  grammar  school 
instruction  ("Volksschulunterricht"),  can  have  no  appreci- 
able efiFect  on  criminality. 

^  Lomhroso,  "Crime:  Its  Causes  and  Remedies,"  p.  114;  "Modem  Crimi- 
nal Science  Series,"  1911,  Horton,  trans.  *  Ibid.,  p.  301. 


§  14]  AGE  139 

§  14.  Age 

The  actions  of  youth  bear  the  stamp  of  impulsiveness, 
which  boldly  approaches  too  difficult  tasks.  With  increasing 
age  caution  and  prudence  grow,  developing  in  old  age  into 
deliberation  and  wise  resignation.  To  what  extent  do  these 
psychological  stages  of  development  appear  in  criminality.^ 
Above  all,  how  does  the  child  develop  into  a  personality 
responsible  to  the  State? 

Our  German  Penal  Code,  like  the  penal  codes  of  all  Euro- 
pean countries  except  those  of  France  and  Belgium,  starts 
with  the  assumption  that  criminal  responsibility  develops 
gradually.^  From  the  time  when  the  first  distinct  signs  of 
conscious  reaction  to  the  provocations  of  the  external  world 
become  noticeable,  the  whole  activity  of  the  child  is  purely 
egoistic.  It  is  dominated  by  the  needs  and  desires  of  its  own 
body,  and  to  fulfill  these  the  child  strives  with  naive  incon- 
sideration  of  others.  But  soon  training  begins  its  work  at 
home  and  at  school.  Dix  ^  calls  the  home  "the  most  impor- 
tant foundation  of  the  entire  social  milieu."  As  far  as  the 
development  of  altruistic  modes  of  thought  are  concerned, 
I  am  inclined  to  attach  still  greater  importance  to  the  school 
than  to  the  family.  The  school  must  not  and  cannot  take  the 
place  of  the  home,  but,  within  the  close  circle  of  family  life, 
training  and  education  are,  after  all,  only  possible  to  a  limited 
extent,  because  encroachments  on  others'  spheres  of  interest 
can  be  but  slight  in  nature.  Companionship  with  others  of 
the  same  age  in  school,  however,  entails  innumerable  conflicts 
which  arouse  in  the  child  the  indistinct  desire  to  have  his 
interests  protected  against  others,  and  also  awaken  in   him 

^  Compare  my  discussions  of:  Strafunmiindigkeit  und  relative  Strafun- 
miindigkeit  in  Hocke,  "Handbuch  der  gerichtlichen  Psychiatrie,"  Berlin, 
1901,  Hirschwald. 

^  Dix,  "  Sozialmoral,"  Leipzig,  1898,  Freund  &  Wittig,  p.  17. 


140  THE  mDIVIDUAL  CAUSES  OF  CREVIE         [§  14 

an  understanding  of  the  necessity  of  adapting  himself  to  others, 
to  his  surroundings,  we  might  say,  to  the  State  on  a  small 
scale. 

At  first,  the  child  learns  to  obey  without  comprehension, 
from  fear  of  punishment,  from  imitation,  but  soon  his  under- 
standing grows,  and  gradually  he  learns  to  overcome  his  own 
selfish  impulses  and  pay  attention  to  the  interests  of  others. 
Right  and  wrong  become  definite  notions,  motives;  their 
distinctness  and  their  weight  finally  grow  to  the  degree  that 
constitutes  responsibility  to  the  law. 

This  development  naturally  takes  place  but  slowly,  step  by 
step,  and,  just  as  naturally,  is  not  equally  rapid  in  all  children. 
This  fact  corresponds  to  the  need  of  gradation,  the  division  in 
our  law  into  persons  below  the  age  of  punishment,  those 
relatively  unpunishable,  and  those  punishable. 

Up  to  the  completion  of  the  twelfth  year  the  child  is  free 
from  punishment.  Unfortunately,  we  have  no  means  of  know- 
ing the  frequency  with  which  children  commit  anti-social 
acts  of  a  criminal  nature.  They  are  probably  not  rare,  as 
the  period  up  to  twelve  years  embraces  about  one-third  of 
the  civil  population,  though,  of  course,  the  very  small  children 
must  be  deducted  from  this  number.  Whether  it  would  be 
easy  to  meet  the  demand  for  criminal  statistics  of  those  under 
the  age  of  punishment,  the  desire  for  which  is  also  expressed 
by  Appelius,^  cannot  be  said  offhand.  I  consider  it  possible, 
with  the  co-operation  of  all  the  authorities  concerned  (school, 
police,  and  courts),  to  obtain  at  least  an  approximate  summary 
of  the  danger  to  legal  security  through  children. 

Of  the  "juveniles,"  as  those  between  the  ages  of  12  and  18 
are  called  in  criminal  statistics,  only  those  are  punished  who 
are  able  to  understand  the  nature  and  consequences  of  their 

^  Appelius,  "Die  Behandlung  jugendlicher  Verbrecher  und  verwahrloster 
Kinder,"  Berlin,  1892,  J.  Guttentag,  p.  11. 


§  14]  AGE  141 

act.  In  the  choice  of  this  expression,  it  was  probably  over- 
looked that  it  leaves  a  wider  margin  than  is  desirable  to  the 
subjective  opinion  of  the  judges.  This  is  best  seen  in  the 
frequency  with  which  juveniles  are  acquitted  in  conformity 
with  §  56  of  the  Penal  Code.  From  1897  to  1899  the  num- 
ber of  such  acquittals,  among  46,328  juveniles,  was  1591,  that 
is,  3.4%. 

This  percentage  was  reached  and  exceeded  by  twelve  of 
the  appellate  provincial  courts  ("Oberlandesgerichtsbezirke"), 
Cologne  having  10,  and  Kolmar  9.8%;  a  number  of  the  others 
fell  quite  below  the  average;  thus,  Dresden  (1.4%),  Olden- 
burg (1.3%),  Zweibrucken  (1.1%).  The  two  districts,  Cologne 
and  Dresden,  show  about  the  same  number  of  convictions, 
as  well  as  of  sexual  crimes;  Cologne's  excess  of  cases  of  as- 
sault and  battery  balances  the  greater  number  of  thefts  in 
Dresden.  In  order  to  explain  the  difference  in  the  number  of 
acquittals  based  on  §  56,  we  are  compelled  to  assume  that 
the  judges  in  Cologne  required  a  higher  degree  of  compre- 
hension than  did  those  in  Dresden. 

A  comparison  of  juvenile  offenders,  between  the  ages  of 
12  and  14,  acquitted  on  the  ground  of  insufficient  compre- 
hension, gives  the  same  result.  For  every  100  of  these  con- 
victed in  all  Germany  from  1894  to  1896,  there  were  10.8% 
acquittals.  Of  the  six  appellate  courts  that  reached  or  ex- 
ceeded this  percentage,  Kolmar  stands  at  the  head  with 
57.1%,  followed  by  Cologne  with  32.2%.  Acquittals  were 
rarest  in  Brunswick  (0.5%),  next  in  Oldenburg  (3.1%),  and 
Dresden  (3.3%). 

It  is  perfectly  justifiable  to  attribute  much  of  this  variation 
to  the  difference  in  the  crimes,  and  also  in  the  mental  develop- 
ment of  the  population  in  the  various  parts  of  Germany. 
Enough  remains,  however,  to  force  us  to  the  conclusion  that 
there  is  no  uniformity  and  agreement  as  regards  what  is  to 


142  THE  INDIVIDUAL  CAUSES  OF  CRIME         [§  14 

be  understood  under  "the  comprehension  of  the  criminal 
illegality  of  an  act." 

The  overburdening  of  certain  courts,  unfortunately,  makes 
it  necessary  to  dispose  of  the  individual  cases  in  too  short  a 
time,  and  this  makes  it  almost  impossible  to  avoid  a  certain 
regular  system  which  makes  use  of  purely  external  criteria, 
like  age  and  physical  development.  But  the  method  of  treat- 
ment in  England  and  Ireland,  as  cited  by  Ernst  Schuster,^ 
can  only  be  stigmatized  as  an  absolute  mockery  of  the  words 
and  intention  of  the  law:  "criminal  responsibility  begins  after 
the  completion  of  the  seventh  year;  with  children  from  7  to 
14,  according  to  the  theory,  proof  must  be  given  that  they  are 
suflaciently  mature  to  be  able  to  distinguish  between  right  and 
wrong.  In  practice,  however,  such  maturity  is  always  assumed 
in  children  over  ten  years!" 

If  the  comprehension  necessary  to  the  perception  of  the 
criminality  of  an  act,  the  "  discernement "  of  the  French, 
were  merely  subject  to  the  error  of  different  interpretations, 
that  might,  perhaps,  be  overlooked.  But  the  term  is  subject 
to  the  greater  error  of  one-sidedness  as  well.  It  demands 
only  a  definite  degree  of  intellectual  development.  In 
general,  the  development  of  moral  education  runs  parallel 
to  that  of  intellectual  development,  but  self-control  does 
not  grow  with  the  intellect.  This  is  best  seen  in  the 
kind  of  crimes  most  frequently  committed  by  juvenile 
offenders. 

In  the  first  place,  the  high  number  of  youthful  offenders 
convicted  of  crime  is  striking,  as  we  cannot  fail  to  take  into 
consideration  that  a  large  percentage  of  them  enjoy  the  pro- 
tection of  the  parental  roof  for  some  of  the  years  in  question. 
It  is  the  more  surprising,  then,  to  find  that  in  certain  crimes 

^  "Die  Strafgesetzgebung  der  Gegenwart  in  rechtsvergleichender  Dar- 
Btellung,"  Berlin,  1894.  Otto  Liebmann,  I.  p.  626. 


14] 


AGE 


143 


the  number  of  convicted  children  still  of  school  age  exceeds 
that  of  the  adults. 

Very  rarely  in  early  youth  will  a  child  always  be  able  to 
resist  the  temptation  to  take  sweets  and  such  things  on  the 
sly;  it  is  generally  just  on  such  an  occasion  that  the  differ- 
ence between  mine  and  thine,  forbidden  and  not  forbidden, 
is  made  clear  to  him.    Criminal  statistics  show  us,  however, 


TABLE  XXMIi 


Per  100,000  Civilians  from 

CoirviCTED  IN  1901  of: 

12  TO  14 

Years 

14  TO  18 

Years 

18  Years 
AND  Over 

All  crimes  and  offenses 

Petit  larceny 

405.2 

230.4 

47.8 

14.7 

9.7 

3.7 

24.9 

30.2 

2.6 

3.5 

2.1 

919.1 

329.4 

65.0 

19.7 

41.3 

25.1 

167.2 

57.2 

29.2 

21.2 

2.6 

1361.7 

208.4 

Grand  larceny 

Receiving  stolen  goods      .... 

Fraud 

Simple  assault  and  battery  .    .    . 
Aggravated  assault  and  battery  . 

Malicious  mischief 

Insult       

28.2 
19.7 
70.6 
79.1 

274.5 
48.3 

165.5 

Indecent  assault  on  children,  etc. 
Arson 

12.6 
0.9 

that  these  teachings  are  obviously  much  more  easily  followed 
by  adults  than  by  children.  The  temptation  to  enrich  him- 
self at  another's  cost  is  considerably  increased  by  the  fact, 
that  the  child  has  fewer  ways  and  means  of  procuring  money 
honestly  than  the  grown  person. 

The  increasing  love  of  enjoyment  that  no  longer  finds  suf- 
ficient food  in  harmless  games  craves  gratification;  if  the 
necessary  means  are  not  at  hand,  they  become  the  motive  for 
stealing,  a  motive  against  the  power  of  which  reason  often 
fights  in  vain.  The  character  lacks  the  maturity  to  conquer 
the  temptation,  which  often,  also,  approaches  from  without  in 

1  "Statistik  des  Deutschen  Reiches,"  N.  F.  CXLVI,  II,  p.  50. 


144  THE  INDIVIDUAL  CAUSES  OF  CRUVIE         [§  14 

the  form  of  good  friends ;  the  youthful  optimism  makes  light 
of  the  danger  of  being  caught;  all  these  things  combine,  and 
the  thief  is  there.  And,  with  the  thief,  the  receiver  of  stolen 
property,  not,  of  course,  the  professional,  at  least,  not  at  once. 
At  the  beginning,  it  is  the  companion  who  perhaps  first  sug- 
gested the  theft  and  in  return  shares  in  the  booty.  Fraud, 
which  requires  more  intelligence  and  deliberation  than  does 
the  theft,  that  is  carried  out  more  boldly  than  cunningly,  is 
rarer. 

Assault  and  battery  and  malicious  mischief  form  a  second 
group  of  offenses.  Although  the  number  of  convictions  for  the 
former  is  considerably  lower  than  the  number  of  adult  con- 
victions, yet  it  must  not  be  forgotten  that,  in  the  etiology  of 
this  crime,  the  public-house  plays  the  principal  part.  For- 
tunately its  portals  are  not  yet  customarily  open  to  minors. 
It  must  be  admitted,  however,  that  in  this  respect  too  re- 
grettable progress  is  noticeable.  While  the  number  of  those 
of  punishable  age  convicted  of  this  offense  increased  from 
1882  to  1901  by  84.3%,  the  number  of  convicted  minors  in- 
creased by  130.1%! 

The  minor  responds  relatively  easily  to  provocation  by 
brutal  violence;  this  is  best  shown  by  a  comparison  of  the 
number  of  cases  of  aggravated  assault  and  battery  with 
the  convictions  for  insult,  which  are  very  similar  in  the  case 
of  adults.  The  young  fellow,  on  the  contrary,  is  apt  to 
wreak  his  anger  on  inanimate  things,  smashing  everything 
within  reach,  but  at  the  same  time  he  does  not  shrink  from 
attacking  others  with  a  stick  or  knife.  Thus,  it  is  his  physical 
strength,  the  awakening  of  which  he  notices  with  pleasure 
and  seeks  to  train  in  athletic  clubs  and  gj^mnasiums,  that  is 
the  main  incentive  to  the  offense  that  is  second  in  frequency 
with  him.  His  first  drinking  escapades,  which  also  occur 
during  these  years,  are  naturally  so  much  the  more  serious 


§  14]  AGE  145 

because,  unaccustomed  to  alcohol  as  he  is,  he  has  not  yet 
learnt  by  experience  to  be  moderate. 

In  general,  sexual  development  does  not  take  place  with  us 
till  in  the  fourteenth  or  fifteenth  year,  or  even  later,  so  that, 
for  physiological  reasons,  a  very  large  number  of  minors 
do  not  come  under  consideration  as  regards  sexual  crimes. 
In  spite  of  this  fact,  the  number  of  convicted  children  under 
fourteen  nearly  reaches  a  third  of  the  adults'  share.  This 
fact  appears  in  a  still  graver  light  when  we  take  into  account 
that,  generally,  more  than  half  of  the  children  arraigned  for 
such  offenses  are  acquitted  on  the  ground  of  insufficient  com- 
prehension. From  1899  to  1901  the  number  of  convictions 
amounted  to  288,  the  number  of  acquittals,  based  on  §  56, 
to  355  among  children  under  14  years.  Thus,  for  every  three 
cases  of  rape  among  adults,  there  are  two  cases  among  children, 
of  whom  only  a  very  small  number  are  suflSciently  developed 
sexually  to  commit  the  crime.  This  gives  us  a  measure  for 
the  strength  with  which  sexual  instincts  appear  from  the 
beginning;  between  the  ages  of  15  and  18  they  make  criminals 
of  nearly  double  as  many  persons  as  among  the  physically 
and  mentally  mature. 

When  it  first  appears,  the  sexual  instinct  finds  little  to  check 
it.  The  reticence  towards  children  that  people  cultivate 
in  regard  to  sexual  subjects  results  in  this,  that  the  child's 
intellectual  development  leaves  him  absolutely  in  the  lurch 
in  regard  to  this  very  matter.  His  feelings,  neither  clear  nor 
comprehensible  even  to  himself,  yet  often  extraordinarily 
powerful,  do  not  meet,  in  their  striving  for  gratification,  with 
a  closed  phalanx  of  prohibitions  and  warnings.  But  even  if 
such  existed,  the  strength  of  the  desire  for  sexual  gratification 
is  greater  than  that  of  the  reason.  We  see  this  every  day, 
even  with  grown  people,  who  are  not  hindered  by  the  full 
knowledge  of  the  dangers  of  intercourse  with  prostitutes  from 


146  THE  INDIVIDUAL  CAUSES  OF  CRIME         [§  14 

exposing  themselves  again  and  again  to  the  probability  of  a 
serious  injury  to  their  health.  How  much  less  can  reason 
achieve  with  children! 

Adults,  even  those  who  are  unmarried,  can  more  easily 
obtain  opportunities  for  sexual  intercourse  than  can  minors. 
This  also  increases  the  danger  and  makes  it  comprehensible 
why  children  are  so  largely  concerned  in  sexual  crimes. 
The  stormy  outburst  of  the  sexual  impulse  breaks  through 
and  obliterates  the  boundaries  of  the  legally  permissible. 

The  crime  of  arson  occupies  a  peculiar  position.  In  the 
country  it  is  frequently  committed  by  servants  from  motives 
of  revenge.  Commonly  the  young  man  or  girl  is  irritated  by 
a  scolding  or  a  blow,  and  his  or  her  anger  gives  rise  to  the  wish 
to  be  dismissed  or  to  play  some  trick  on  the  master.  A  tempt- 
ing means  of  accomplishing  this  is  the  barn,  and  it  is  probable 
that  the  pleasure  which  many  people  experience  in  watching 
a  blaze  is  also  not  without  influence.  Whether  this  process 
can  take  place  in  a  perfectly  normal  brain,  would  certainly 
be  worth  a  more  exact  investigation,  for  which  my  material, 
unfortunately,  is  inadequate.  Nevertheless,  it  can  scarcely 
be  chance  that  five  of  the  six  young  girls  convicted  of  arson, 
whom  I  examined  carefully  in  the  course  of  a  year  while  they 
were  in  prison,  were  unusually  weak  minded,  only  one  being  of 
normal  intelligence.  In  every  case  the  court  had  assumed 
the  child  to  be  capable  of  comprehending  her  act,  and  in  some 
instances  had  imposed  really  severe  penalties. 

I  cannot  refrain  from  referring  to  still  another  experience. 
Epilepsy,  arson,  mysticism,  cruelty,  and  sexual  excitement, 
are  all  interrelated;  even  though  the  psychological  root  of 
this  relation  is  entirely  unknown  to  us,  yet  the  frequency  of 
this  combination  points  to  deeper  connection,  which  probably 
borders  on  the  pathological.  I  would  not  be  understood  as 
saying  that  every  one  of  these  factors  is  found  in  every  case  of 


§  14]  AGE  147 

arson,  but  it  is,  nevertheless,  advisable  to  consider  the  possi- 
bility of  a  pathological  origin  of  the  crime;  it  seems  to  me 
to  be  absolutely  necessary  to  investigate  this  whole  question 
with  the  aid  of  a  careful  analysis  of  numerous  cases. 

Apart  from  cases  of  arson,  we  have  still  three  main  groups 
of  crimes  committed  by  juveniles:  crimes  against  property, 
crimes  of  violence,  and  crimes  against  chastity.  This  combi- 
nation suflBciently  proves  that  legislation  is  guilty  of  one- 
sidedness,  in  that  it  lays  the  emphasis  precisely  on  the  devel- 
opment of  the  understanding.  Those  impulses  and  instincts 
that  we  have  mentioned  as  being  stronger  and  less  disciplined 
among  juveniles  than  among  adults,  are  not  all  with  which 
we  have  to  reckon;  to  these  must  be  added  at  least  the 
greater  excitability  of  the  emotions,  and  the  desire  to  imitate. 

The  dangers  of  the  youthful  period  of  development  are  the 
more  serious  for  public  safety,  the  greater  the  extent  to  which 
the  growing  generation  participates  in  the  struggle  for  exist- 
ence. If  it  be  true  that  many  crimes  have  their  origin  in 
external  circumstances,  this  must  show  itself  the  more  clearly 
with  minors,  the  earlier  and  the  more  numerously  they  leave 
the  protection  of  the  paternal  roof  to  work  in  factories. 

Our  statistics  give  information  in  regard  to  the  displacement 
("Verschiebung")  of  industrial  conditions.^  It  is  not  so  great 
as  is  generally  supposed.  It  is  true  that  in  the  last  census 
of  occupations  in  1895,  21.18%  of  those  engaged  in  gainful 
occupations  were  under  20,  in  1882  only  19.99%.  But 
only  certain  isolated  kinds  of  occupation  are  concerned  in  this 
increase,  to  the  greatest  extent  those  that  provided  board  and 
lodging  (22.00:14.63%),  building  trades  (21.16:16.47%), 
metal  industries  (28.90  :  24.51%),  and  commercial  occupations 
(10.87  :  13.64%),  while  in  agriculture  and  forestry,  as  well  as  in 

'  "Die  berufliche  und  soziale  Gliederung  des  deutschen  Volkes"  (Statistik 
des  Deutschen  Reiches,  N.  F,  III,  p.  151). 


148 


THE  INDIVIDUAL  CAUSES  OF  CRIME 


[§14 


mining,  the  proportion  of  those  under  20  has  remained 
exactly  the  same.  Thus,  although  the  number  of  youthful 
workmen  in  the  country  has  undergone  no  change,  the  increase 
in  the  number  of  minors  in  factories  and  in  hotels  and  public- 
houses  is  most  clearly  seen.  The  following  figures  may  serve 
to  show  how  frequently  minors  are  engaged  in  gainful  occu- 
pations: in  1895  there  were  4,006,317  persons  under  20, 
1,097,358  under  16,  and  146,290  under  14,  who  were  thus 
independently  at  work;  no  account  is  taken  of  those  who 
worked  only  occasionally. 


TABLE  XXVIII' 


Convictions  per  100,000 : 


Yeab 

Adults 

MniOBS 

Between  1882  and  1886 

1097 
1120 
1281 
1298 
1321 

564 

Between  1887  and  1891 

618 

Between  1892  and  1896    

707 

Between  1897  and  1901 

733 

Between  1902  and  1906 

736 

The  figures  of  criminal  statistics  do  not  prove  by  themselves 
that  the  effect  of  the  greater  participation  of  minors  in  indus- 
trial life  is  injurious.  But  one  thing  cannot  fail  to  be  recog- 
nized: the  number  of  persons  under  18  who  are  convicted 
is  increasing  more  rapidly  than  the  number  of  convicted  grown 
persons. 

The  increase  among  adults   (20.4%)   is  considerably  less 

than  that  among  minors  (30.5%).    Since  reaching  its  climax 

in  the  year  1892,  however,  the  number  of  convicted  minors 

diminished  somewhat  up  to  1897.     Now,  as  industrial  life 

has  made  a  tremendous  advance  since  that  very  year,  and, 

consequently,  the  whole  number  of  workmen  employed,  and 

1  Reckoned  from  "Stat.  d.  Deutschen  Reiches"  (N.  F.  CXLVI,  I,  35  and 
36). 


§  14]  AGE  149 

also  the  number  in  proportion  to  minors,  must  have  grown, 
it  might  almost  appear  as  if  crime  was  rather  prevented  than 
furthered  by  the  entrance  of  young  people  into  industrial  life. 

Von  Liszt/  contrary  to  his  former  opinion,  has  lately  ad- 
vanced this  view,  and  has  formed  the  hypothesis:  "Under 
favorable  economic  conditions,  and  when  the  demand  for 
workmen  is  high,  a  number  of  youths  are  employed  in  factories 
as  substitutes  for  grown  workmen.  There  their  situation  is 
assured  to  a  certain  extent  by  legislation  for  the  protection  of 
workmen,  much  more,  indeed,  than  it  would  be  today  at 
least,  if  they  were  engaged  in  home  industries.  When  the 
economic  situation  becomes  less  favorable,  the  boys  employed 
in  the  factories  are  the  first  to  be  dismissed  and  turned  into 
the  street.  They  have  lost  the  means  of  earning  their  liveli- 
hood and  are  no  longer  able  to  satisfy  the  new  tastes  and 
habits  they  have  formed,  so  that  social  shipwreck  is  bound 
to  occur." 

Unfortunately,  this  optimism,  that  sees  in  the  temporary 
diminution  of  criminality  since  1892  a  ground  for  the  conclu- 
sion that  the  industrial  activity  of  minors  is  beneficial,  does 
not  seem  to  me  to  be  entirely  justified.  Here,  too,  it  is  neces- 
sary, in  order  to  see  clearly,  to  separate  the  whole  number  of 
crimes  into  the  different  offenses.  We  then  see  (Table  XXIX) 
that  it  is  only  the  decrease  in  the  thefts  that  leads  us  to  believe 
in  the  improvement.  Otherwise,  we  find  that  in  reality  an 
alarming  increase  in  the  convictions  of  juveniles  has  taken 
place,  and  in  particular,  precisely  in  their  most  characteristic 
offenses,  with  the  exception  of  theft,  which  has  increased  only 
8%.  Aggravated  assault  and  battery  has  increased  123% 
per  100,000  juveniles,  breach  of  the  peace  128.6%,  insult 
105%,    resisting   an   oflScer  50%,   malicious    mischief   55%, 

1  Von  Liszt,  "Die  Kriminalitat  der  Jugendlichen."  Lecture  delivered  be- 
fore the  Rheinisch-Westfalischen  Gefangnisgesellschaft,  1900. 


150 


THE  INDIVIDUAL  CAUSES  OF  CRIME 


[§14 


fraud    and    embezzlement    40%,    ofiFenses    against    chastity 
19%.^ 

In  most  of  these  crimes  the  increase  is  a  perfectly  regular 
and  uninterrupted  one.  These  figures  prove  how  dubious  the 
participation  of  minors  in  industrial  life  is;  the  boy  who  early 


TABLE  XXIX 

Persons  Convicted  per  100,000  Minors  op  the  Civn,  Population 

(Statistik  des  Deutschen  Reiches,  N.  F.  CXLVI.  I.  104.) 


Resistance  to  State  au- 
thority   

Breach  of  the  peace    .     . 

Crimes  and  offenses 
against  chastity    .    .    . 

Insult 

Simple  assault  and  battery 

Aggravated  assault  and 
battery 

Petit  larceny 

Petit  larceny  when  re- 
peated     

Grand  larceny 

Grand  larceny  when  re- 
peated     

Embezzlement      .... 

Fraud     

Malicious  mischief  .    .    . 

All  crimes  and  offenses 
against  national  laws   . 


7 

14 

22 
20 
19 

95 
289 

14 
62 

6 

33 
29 
45 


716 


in  life  is  able  to  earn  the  means  of  "enjoying  his  life,"  pays  for 
this  enjoyment  by  losing  his  blameless  reputation. 

Only  one  point  contradicts  this,  the  relative  stagnation  of 
the  convictions  for  theft.  In  the  first  year  included  in  the 
statistics,  1882,  the  industrial  situation  was  unfavorable 
(compare  p.  110);  this  corresponded  to  the  high  number  of 
thefts,  that  was  not  equaled  again  until  the  years  1890-1892. 


1  The  last  figure  is  no  doubt  most  influenced  by  the  evident  increase  in 
acquittals  on  the  ground  of  §  56  of  the  Penal  Code,  the  result  of  which  ac- 
quittals is  to  give  an  outwardly  favorable  aspect  to  the  criminality  of  juveniles. 


§14] 


AGE 


151 


From  then  on,  the  improvement  is  noticeable,  corresponding 
to  the  lower  prices  of  grain  and  the  higher  wages  that  came 
with  the  industrial  high  tide.  The  improvement  of  minors, 
however,  owing  to  their  greater  psychic  sensibility,  remains 
considerably  below  that  of  adults.    With  increased  prosperity. 


TABLE  XXIX  —  (Continued) 
Persons  Convicted  per  100,000  Minors  of  the  Civil  Population 
(Statistik  des  Deutschen  Reiches,  N.  F.  CXLVI,  I,  104.) 


1895 

1896 

1897 

1898 

1899 

1900 

1901 

1902 

1903 

1904 

1905 

1906 

Resistance   to   State   au- 

thority    

7 

8 

7 

8 

8 

7 

7 

7 

6 

6 

7 

6 

Breach  of  the  peace    .     . 

14 

14 

14 

16 

17 

16 

16 

17 

17 

16 

18 

18 

Crimes       and       offenses 

against  chastity    .    ■    . 

21 

21 

18 

19 

19 

19 

20 

20 

22 

20 

20 

19 

Insult 

19 

19 

19 

20 

19 

20 

20 

21 

20 

21 

20 

21 

Simple  assault  and  battery 

21 

20 

18 

18 

19 

19 

18 

18 

17 

17 

17 

18 

Aggravated    assault    and 

^ 

battery 

98 

102 

98 

108 

113 

113 

117 

112 

109 

109 

106 

107 

Petit  larceny 

278 

271 

281 

293 

279 

290 

284 

283 

283 

279 

291 

304 

Petit    larceny    when    re- 

peated     

13 

13 

12 

13 

11 

12 

11 

10 

9 

8 

7 

7 

Grand  larceny      .... 

60 

52 

52 

67 

65 

66 

55 

69 

65 

53 

59 

66 

Grand   larceny  when  re- 

peated     

6 

4 

4 

4 

4 

4 

4 

4 

3 

3 

3 

2 

Embezzlement      .... 

34 

33 

33 

35 

34 

34 

32 

S3 

32 

83 

33 

35 

Fraud 

29 

27 

30 

30 

30 

30 

30 

28 

28 

27 

27 

28 

Malicious  mischief  ... 

41 

46 

45 

47 

50 

46 

48 

49 

48 

46 

47 

48 

All    crimes    and    offenses 

against  national  laws  . 

702 

702 

702 

744 

733 

746 

739 

740 

726 

715 

733 

764 

their  needs  grow,  and,  unfortunately,  not  their  thirst  for  knowl- 
edge and  higher  forms  of  amusement  only.  The  public  danc- 
ing hall  and  the  saloon  grow  to  be  habits  of  life  all  too  early; 
the  sad  consequence  appears  in  the  increase  of  crimes  of 
violence. 

But  what  may  happen  if  hard  times  again  succeed  the  pres- 
ent prosperous  period?  It  is  always  dangerous  to  prophesy, 
but,  still,  I  consider  it  necessary  to  prognosticate  the  corning 
years.  If  it  should  come  true,  it  may  be  considered  as  a  test 
of  the  correctness  of  the  views  I  have  just  advanced.     The 


152  THE  INDIVIDUAL  CAUSES  OF  CRIME        [§  14 

industrial  crisis  will  bring  about  a  drop  in  wages  and  a  greater 
number  of  dismissals.  These  dismissals  will  first  affect  the 
youthful  workmen  and  those  who  are  physically  and  men- 
tally inferior.  A  part  of  them  will  seek  to  obtain  by  dishonesty 
what  their  lack  of  employment  prevents  their  obtaining  other- 
wise, the  necessaries  of  life;  also,  however,  the  gratification 
of  their  habits.  If,  in  addition,  the  price  of  grain  should 
actually  rise,  I  assume,  with  Seuffert^  and  von  Liszt,  that  we 
shall  have  a  remarkable  increase  in  the  number  of  thefts. 

I  have  allowed  the  above  paragraph  to  stand  as  I  wrote  it 
in  1905.  In  the  meantime,  statistics  have  sho^vTi  that  my 
prognostication  was  right.  The  figures  for  theft,  and  also 
those  for  the  total  criminaUty,  have  risen  to  a  hitherto  un- 
equaled  height,  and  thus,  also,  a  considerable  part  of  our 
dangerous  youths  have  been  restrained  from  exercising  their 
criminal  inclinations  by  corrective  training  ("  Fiirsorgeer- 
ziehung").  That  this  has  its  effect,  is  shown  by  the  decrease 
in  the  number  of  convictions  for  offenses  other  than  the  first. 

The  economic  crisis  will  have  a  favorable  effect  on  the  crimes 
of  violence,  possibly  even  cause  a  halt  in  the  uninterruptedly 
rising  fine,  but  will  scarcely  cause  it  to  descend  perceptibly. 
The  years  1889-1892,  with  their  high  price  of  bread,  also 
raised  the  number  of  thefts,  but  were  not  able  to  check  the 
rise  of  the  crimes  of  violence. 

If  we  look  into  the  future,  the  prospect  is  not  bright,  but 
one  thing  gives  us  a  glimmer  of  hop>e.  The  corrective-edu- 
cation law  ("  Fiirsorgeerziehungsgesetz ")  of  the  indixddual 
States  —  which  it  is  to  be  hoped  will  soon  give  way  to  a  law 
for  the  whole  Empire  —  gives  the  State  and  the  authorities 
(parents  can  scarcely  be  considered),  a  welcome  means  of 
preventing  endangered  and  dangerous  juveniles  from  living 
at  large  and  uncontrolled  in  society.     If  all  the  authorities 

1  hoc.  cU.  p.  27. 


§  14]  AGE  153 

concerned  do  their  duty,  and  provide  for  every  child  that  has 
come  into  conflict  with  the  criminal  law,  and  whose  home  offers 
no  guarantee  for  improvement,  a  tremendous  external  im- 
provement in  the  criminality  of  our  boys  and  girls  will  be 
attained;  if,  in  addition,  all  those  children  are  included  who 
are  in  danger  of  falling,  we  can  be  sure  of  success. 

How  far  this  success  will  go,  the  future  alone  can  show. 
Its  perfect  completeness,  that  is,  the  real  improvement  of  these 
children,  that  will  make  of  a  neglected  child  a  useful  member 
of  human  society,  will  probably  often  remain  a  "pium  deside- 
rium."  But  the  gain  is  still  great  if  all  these  dubious  elements 
are  only  rendered  innocuous  for  a  few  years,  in  particular  for 
those  years  in  which  criminal  perils  are  particularly  strong. 

Youth  resembles  a  very  sensitive  instrument,  the  functions 
of  which  suffer  from  even  the  gentlest  external  touch.  That 
is  true  not  alone  for  juveniles  of  the  Penal  Code:  even  older 
boys  and  girls  of  from  18  to  21  show  but  little  ability  to  resist 
temptations  of  all  sorts.  Table  XXX  shows  the  share  of  each 
age  in  relation  to  the  total  number  of  responsible  persons  of 
the  same  age. 

It  is  worth  while,  in  this  respect,  to  consider  the  two  sexes 
separately.  Among  young  men  of  from  18  to  21,  the  most 
frequent  crimes  are:  offenses  against  chastity,  petit  and 
grand  larceny,  receiving  stolen  goods  and  forgery,  robbery 
and  extortion,  and,  oftenest  of  all,  malicious  mischief,  — 
the  same  crimes,  that  is,  as  those  committed  by  juveniles. 
The  years  from  21  to  25  show  the  greatest  participation  in 
crimes  altogether,  manslaughter,  breach  of  the  peace,  simple 
assault  and  battery,  fraud  and  embezzlement.  Thus  we  see 
that  at  this  age,  to  the  emotional  crimes  and  dishonesty  are 
added,  in  growing  numbers,  the  crimes  requiring  deliberation, 
like  fraud  and  embezzlement;  the  character  of  the  crimes  of 
violence,  if  one  may  say  so,  becomes  somewhat  more  harm- 


154  THE  INDIVIDUAL  CAUSES  OF  CRIME  [§  14 

less,  breach  of  the  peace  taking  the  place  of  mahcious  mis- 
chief, and  simple  assault  and  battery  that  of  aggravated 
assault  and  battery.  Between  25  and  30  the  climax  is 
reached  for  murder,  for  coercion  and  threats,  and  also  for 
procuring  women  for  prostitution;  at  this  age  the  procurer 
thrives.  With  advancing  age  deeds  of  violence  grow  less, 
and,  probably  in  connection  with  the  occupation,  the  offenses 
that  come  into  the  foreground  between  30  and  40  are  break- 
ing out  of  jail  and  insult,  while  between  40  and  50  it  is  \dola- 
tion  of  oath  that  becomes  prominent. 

'^The  weakening  body  becomes  unfit  for  all  those  crimes  in 
which  physical  strength  and  skill  are  necessary;  there  is  less 
energy,  and  finally,  in  advanced  age,  but  little  crime  occurs. 
Thus,  for  instance,  while  grand  larceny  reaches  its  highest 
point  between  the  ages  of  18  to  21,  after  the  seventieth  year 
it  sinks  back  to  the  150th  part,  in  relation  to  the  same 
number  of  responsible  persons  of  the  same  age.  So  much 
the  more  striking  is  the  high  number  of  convictions  for  in- 
decency and  rape,  which  at  this  age  nearly  equals  the  fourth 
part  of  the  convictions  of  young  men  in  the  most  vigorous 
age  (18-21).,  It  should  be  distinctly  emphasized  here,  that, 
with  few  exceptions,  such  cases  are  due  to  pathological  con- 
ditions. In  our  climate  sexual  desires  usually  cease  at  sixty 
years;  it  is  very  rare  for  them  to  be  found  at  a  great  age. 
Every  man  over  seventy  who  is  guilty  of  such  an  offense 
should  be  made  the  subject  of  a  psychiatrical  report;  in  that 
case  most  of  them  would  not  find  their  way  into  prison,  but 
into  the  insane  asylum  or  home  for  the  aged,  where  they  rightly 
belong.  Among  all  those  whom  I  have  come  across  I  have  not 
found  one  who  was  mentally  sound;  in  every  case  there  was 
pronounced  senile  decay. ^    This  view  is  also  supported  by  the 

^  Aschaffenburg,  "Zur  Psychologic   der  Sittlichkeitsverbrecher"  (MSchr. 
Krim.  Psych.  II,  404). 


§14] 


AGE 


155 


CO    >— I 

I— ( 


S 

i-H 

HH 

b 

>^ 

O 

>< 

01 

X 

hJ 

a 

P^ 

.^  ^ 


'-'  « 


rH 

13 

n 

M 

>^ 

4-» 

o 

.JfJ 

.3 

cc 

c 

« 

o 

u 

aaiHOsim  eaoionvj^ 

80.37 

70.56 

207.90 

170.89 
118.89 
76.92 
48.04 
26.80 
13.51 
7.27 

■ot-Tjoooioe-tDeooj 
oo»eoi>o»t-'-'>J''>'»> 
.*-  o»  vj  lo  0  «o  flo  •*-  a*  © 

oaxvaja'g 
uaHAi  081V  'aavHj 

88.06 

33.79 

134.98 

164.82 

119.43 
83.27 
49.71 
24.05 
9.04 

19.50 
17.69 
39.93 

88.02 

26.38 

20.64 

10.54 

9.85 

4.07 

1.85 

oaivaaag 
Naau  osnv  'saoog 
saqoxg  DtoAiaoaa 

28.21 
28.62 
39.69 
35.61 
34.09 
32.54 
28.24 
20.61 
11.56 
3.88 

16.83 
4.10 
8.98 
12.40 
16.60 
26.74 
31J)6 
19.69 
7.98 
2.77 

iNareaizzaaug 

80.97 

46.66 

138.49 

142.80 

134.83 

105.77 

71.82 

41.82 

20.67 

7.27 

<ot-»Deo>ooosoeo<o 

0»'}<C)CSt-Ot-;-^'000 

00-^odW'^'^O'V'o^ 

aaxvajag  NaHA\  ostv 

'AKaOHVI   ONVH^ 

57.95 

89.40 

149.71 

107.83 
72.45 
44.81 
26.04 
12.99 
6.01 
0.97 

7.19 

9.58 

16.14 

12.46 
9.46 
6.93 
4.70 
2.35 
0.86 
0.13 

oaxvaaa'a  KaHu 
osTv  'Auaoavq  xixaj 

852.49 
418.46 
626.82 

614.82 
455.08 
365.27 
272.08 
184.06 
109.73 
45.71 

132.26 
151.58 
233.00 

184.70 
160.59 
140.88 
118.29 
76.08 
89.96 
14.66 

jsraixvg  a.«tv 
xiavesy  aaiyAvaooy 

856.80 

148.69 

1012.66 

958.09 
645.87 
339.35 
194.29 
116.80 
56.86 
21.97 

26.99 
6.16 
19.97 
28.85 
87.78 
42.66 
38.31 
23.81 
10.71 
3.70 

isaxxvg 
OJCT  xiarssy  aidiag 

118.80 

29.72 

198.18 

243.64 

230.08 

165.08 

102.10 

58.61 

25.24 

9.21 

12.71 

2.19 

7.13 

12.40 

19.50 

23.04 

18.99 

10.78 

4.74 

1.69 

xiasN} 

204.36 
23.35 
127.82 
197.59 
265.40 
324.19 
316.86 
234.76 
132.08 
51.68 

69.52 

7.84 

30.80 

52.98 

83.50 

114.87 

119.08 

81.66 

40.97 

16.98 

Roixaxixsoaj 
ox  jiauoAi  ONiaaoNi 

i-i«5OStOO»00Ot-Ht.io 
0»   0»    (.;  t.;  M   •«   t^   >0  00   » 
•QOOOOOIHOOUJOO-'HO 

IH 

GO    QO   OS    OS   0  00  to    to    >-H   0 
0»-Hr.irfl'*a--<><001- 

i>  d  -^  •*  d  ■^  00  t--  00  0 

ajvg  'Baina3  Tvaxag 

OOCO'«CO»t<tOOStOO'»» 
tOOSIO-*tOtOOS9»OSt- 

0  -)•  «D  1--  ix-  OS-  vi  00  -^  00 

•oooo-^-^osooo     .     . 

i-<«co'»»— '©00      : 

d  0*  d  d  d  d  00    ■    ■ 

HXVQ   JO    H0IXV101A 

00«5'fO-ftO«00>OtO 

ooos<vo'>»<«i6o»oo'>» 
coot^o6o>o>e>co->Q<M 

2.81 
0.48 
2.52 
2.78 
2.68 
2.95 
3.60 
2.89 
1.44 
0.66 

aovaj  anx  dO  HOvaHg 

90.38 

19.32 

169.68 

191.04 

171.42 

121.49 

81.93 

45.77 

21.25 

8.08 

12.25 

1.46 

6.68 

9.16 

13.61 

20.30 

23.20 

14.79 

5.97 

2.26 

SHaOLUQ 
ox  SI0NVX«B3>J 

77.46 

8.12 

120.90 

173.69 

161.84 

111.02 

68.83 

86.57 

15.64 

5.33 

©CO>OtO-»>O»tO©003» 
*.   "^    '^   "?    ^  •?   '^.   "'.   °.   <". 

•od-^i>do»o6<oi>«©- 

aoiAHag  iavxnijv  ao 

1101SVA3  xaaoxg  smvi 

avkoixvf^  XBNivov 

easNajJO  "•'^  sama^ 

1847.03 
1032.72 
3291.04 
3327.28 
2928.12 
2259.13 
1651.22 
1068.39 
571.75 
227.25 

380.42 
229.56 
443.59 
443.58 
482.41 
622.66 
489.40 
314.74 
153.03 
68.25 

1 

- 

Male  convicts 
12  to  18  years 
18  "  21  " 
21  "  25  "  . 
25  "  30  "  . 
30  •'  40  "  . 
40  "  50  "  . 
50  "60  "  . 
60  "  70  "  . 
70  years  and  ove 

Female  convicts 
12  to  18  years 
18  "  21  "  . 
21  "25  "  . 
25  "  80  "  . 
SO  "  40  "  . 
40  "  50  "  . 
60  "60  "  . 
60  "  70  "  . 
70  years  and  ove 

156  THE  INDIVIDUAL  CAUSES  OF  CRIME         [§  14 

fact,  that  most  of  these  old  men  have  led  blameless  lives. 
Among  the  303  men  of  70  years  and  over  who  were  convicted 
between  1897  and  1899,  216  had  never  before  been  punished! 

Among  women  the  conditions  are  slightly  shifted;  a  very 
dangerous  age  with  them  is  between  18  and  21,  when  all  kinds 
of  crimes  arising  from  dishonesty,  especially  petit  and  grand 
larceny,  embezzlement,  fraud,  and  forgery  are  committed. 
Between  the  thirtieth  and  the  fortieth  year  violence  reaches 
its  climax,  especially  assault  and  battery,  resisting  an  oflficer, 
malicious  mischief,  and  inducing  women  to  prostitution.  In- 
stead of  the  men-procurers,  we  have  the  women  keepers  of 
brothels,  and  landladies,  who  maintain  the  number  of  con- 
victions almost  at  the  same  height  even  for  the  next  decade. 
To  these,  however,  are  added,  also,  the  insults  and  breaches 
of  the  peace  that  frequently  result  from  quarrels  in  tene- 
ment houses,  violation  of  oath,  coercion,  and,  finally,  re- 
ceiving stolen  goods.  Whereas,  among  boys,  it  is  generally  a 
comrade  who  acts  as  the  receiver,  among  girls  it  is  often  an 
aged  woman  who  makes  a  business  of  the  practice,  and  — 
unfortunately  —  it  is  frequently  the  mother  who  receives  the 
goods  and  supports  her  children  in  their  thieving. 

According  to  Quetelet,^  "the  inclination  to  steal  is  earliest 
developed,  and,  in  a  manner,  controls  the  man  all  his  life. 
It  is  first  active  in  the  family  circle,  and  thus  thievery  in  the 
household  is  developed.  Then  the  youth  also  turns  his  atten- 
tion to  other  spheres,  sometimes  resorts  to  violence,  and  does 
not  even  stop  at  murder.  This  latter  phase,  however,  is  pre- 
ceded by  the  inclination  to  carnal  crimes,  that  is  so  strong 
in  youth,  and  that  goes  hand  in  hand  with  the  heat  of  desire 
and  the  excesses  that  accompany  it.  The  youthful  criminal 
first  seeks  his  victim  among  those  least  capable  of  resistance. 

1  Quetelet,  "Physique  sociale  ou  essai  sur  le  developpement  des  facultes  de 
rhomme,"  1869,  II,  p.  306. 


§  14]  AGE  157 

He  then  comes  to  the  crimes  that  are  committed  with  calm 
deliberation.  The  man  who  has  become  cooler  simply  de- 
stroys his  victims  by  murder  and  poison;  the  last  phase  is 
characterized  by  deceit  and  cunning,  which  take  the  place 
of  strength.  Avarice  awakes  anew  and  leads  the  criminal 
to  falsifications;  now  he  seeks  to  strike  his  enemy  in  the  dark. 
If  sexual  desires  still  exist,  such  men  seek  their  victims  among 
weak  children;  to  this  extent  there  is  a  certain  similarity 
between  the  first  and  the  last  steps  in  the  career  of  crime." 

This  description  does  not  entirely  agree  with  German 
statistics  and  is  apt  to  produce  a  false  impression,  inasmuch 
as  it  is  very  rare  to  find  an  individual  who  has  led  the  whole, 
or  even  a  part,  of  this  criminal  career.  The  distribution  over 
the  different  ages  corresponds  much  more  to  the  different 
stages  of  physical  and  mental  development  and  the  way  in 
which  they  are  influenced  by  the  external  conditions  of  life. 
A  young  fellow,  when  he  steals,  is  much  more  likely  to  depend 
on  his  physical  agility  than  an  older  man  is,  and  the  latter, 
therefore,  prefers  to  steal  only  when  opportunity  offers,  or 
to  depend  more  on  fraud  and  embezzlement.  For  the  same 
reason,  when  he  quarrels,  he  will  rather  rest  satisfied  with 
mere  verbal  abuse  than  try  his  strength  with  the  other;  in 
this  connection  it  must  also  be  taken  into  consideration  that 
alcoholic  excesses,  except  where  habitual  drunkards  are  con- 
cerned, decrease  with  advancing  age. 

The  whole  method  of  considering  ages  does  not,  neverthe- 
less, afford  us  a  deep  insight  into  the  etiology  of  crime,  except 
in  the  case  of  the  very  young,  and,  to  a  certain  extent,  the  very 
old.  But  what  experience  with  juveniles  teaches  us  is  so  much 
the  more  important  and  instructive,  because  it  shows  us  what 
dangers  attend  the  age  of  adolescence,  and  where  the  lever 
must  be  applied  in  order  to  keep  the  annual  crowd  of  juveniles 
from  the  first  step  in  a  criminal  career. 


158  THE  INDIVIDUAL  CAUSES  OF  CRIME        [§  15 

§15.  Sex 

The  criminality  of  men  and  women  shows  remarkable  diflFer- 
ences  (Table  XXXI).  Certain  ofiFenses,  except  as  regards 
being  an  accessory,  which  is  relatively  rare,  are  only  possible 
for  one  of  the  two  sexes  because  of  their  nature,  as,  for  instance, 
infanticide  (§  217)  with  women,  dueling,  illegal  marriage, 
rape,  avoiding  military  service,  with  men.  The  abandonment 
of  children  and  criminal  abortion  are  also,  for  obvious  reasons, 
more  frequent  among  women.  Apart  from  the  fact  that  in 
most  cases  it  is  the  woman  who  has  to  bear  the  greater  care 
of  the  new  or  unborn,  generally  illegitimate,  child,  it  is  prob- 
ably much  easier  to  prove  a  woman's  participation  in  a  case 
of  abortion  than  a  man's.  On  one  point  we  must  not  deceive 
ourselves:  the  number  of  convictions  for  this  crime  bears 
no  relation  whatever  to  the  frequency  of  the  offense;  it 
merely  shows,  as  Lewin  ^  says,  "  the  greater  or  lesser  skill  with 
which  abortion  is  concealed." 

Convictions  for  procuring  women  for  prostitution  are  strik- 
ingly frequent  among  women.  This  is  partly  due  to  the  fact 
that  prostitutes  are  much  more  inclined  to  help  their  men 
companions  out  of  a  dilemma  in  court  than  they  are  to  aid 
the  women  who  keep  brothels  or  rent  rooms.  But  we  are  not 
justified  in  taking  this  offense  all  too  seriously.  Frequently 
the  women  concerned  keep  houses  for  registered  prostitutes,  — 
hence,  with  the  consent  of  the  police.  If  such  a  woman  offends 
a  neighbor,  who  is  probably  no  better  herself,  the  latter  may 
report  the  case,  and  the  public  prosecutor  is  then  obliged 
to  proceed,  and  the  court  to  convict!  As  regards  this  offense, 
too,  it  need  scarcely  be  repeated  (compare  p.  96)  that  the 
rarity  of  conviction  is  out  of  all  proportion  to  the  frequency 
of  the  crime. 

^  Lewin,  loc.  cit.  p.  20. 


§  15]  SEX  159 

In  all  other  oflfenses  women's  criminality  is  far  below  that 
of  men.  The  woman  thief  and  receiver  of  stolen  goods  is 
comparatively  frequent.  Apparently  that  is  the  kind  of  dis- 
honesty that  their  nature  and  manner  of  life  make  most  easily 
possible  to   them.     They   lack   the   physical  skill   and  the 

TABLE  XXXI 

Number  of  Adult  Women  Convicted  in  1909  per  100  Adult  Men 

Convicted 

Inducing  women  to  prostitution  (for  the  year  1907)      ....  75.6 

Receiving  stolen  goods 46.9 

Prison  breach 37.8 

Perjury 36.1 

Insult      36.1 

Petit  larceny 31.4 

Embezzlement 19.3 

Forgery 19.2 

Murder 18.6 

Fraud      17.0 

Extortion 15.9 

Arson      15.9 

Manslaughter 14.5 

Simple  assault  and  battery 10.7 

Breach  of  the  peace 9.9 

Aggravated  assault  and  battery 8.3 

Grand  larceny 7.3 

Malicious  mischief 6.0 

Coercion  and  threats 5.6 

Resisting  officers       5.4 

Robbery  and  extortion 2.0 

Indecent  assaults  on  children,  etc 0.48 

courage  to  break  and  enter;  embezzlement  and  fraud  prosper 
better  in  commercial  pursuits,  in  which  women  are  relatively 
less  engaged  than  are  men. 

The  infrequency  of  assault  and  battery  and  malicious 
mischief  is  due  less  to  their  lack  of  physical  strength  than  to 
the  fact  that  they  are  less  given  to  drinking  than  men,  A 
drunken  woman,  too,  is  more  apt  to  express  her  fury  in  verbal 
abuse  than  in  a  direct  attack.  I  hesitate,  however,  to  trace 
the  frequency  of  insults  to  this  rare  source.     The  cau.se  is 


160  THE  INDRTDUAL  CAUSES  OF  CRBIE         [§15 

rather  to  be  found  in  the  greater  sensitiveness  of  the  woman, 
who  is  only  too  apt  to  think  that  some  unfriendly  remark 
casts  a  reflection  on  her  honor,  and  replies  with  an  insult; 
the  constant  friction  between  the  inmates  of  large  tenement 
houses  is  also  partly  to  blame. 

Finally,  another  specifically  feminine  oflFense  is  false  accusa- 
tion. Though  the  number  of  such  offenses  committed  by  men 
is  greater  than  that  of  those  committed  by  women,  yet  we 
must  not  overlook  the  fact  that  women  are  kept  from  conflicts 
to  a  much  larger  extent  because  of  their  work  at  home  and 
their  domestic  seclusion.  The  act  of  which  persons  are  often 
falsely  accused  is  a  sexual  attack,  and  the  victims  of  such 
false  accusations  are  frequently  clergymen  and  physicians. 
The  accusation  is  not  always  a  pure  invention;  sometimes 
hysterical  delusions  and  misunderstood  pathological  sensa- 
tions are  at  the  bottom  of  it.  It  occasionally  happens  that  such 
an  accusation  is  made  after  narcosis  or  hypnotism,  when  only 
the  presence  of  a  second  person  can  protect  the  physician. 

On  the  whole,  it  may  be  said  that  women's  crimes  bear 
rather  the  character  of  insincerity,  those  of  men  of  brutality. 
We  have  reason  to  be  glad  that  the  number  of  convictions, 
compared  with  the  total  number  of  responsible  women, 
shows  but  an  inconsiderable  increase,  15%  less,  in  fact,  than 
the  increase  in  the  convictions  of  male  individuals  in  two 
decades  (Table  XXXII). 

The  importance  of  this  stagnation  in  women's  criminality 
must  not  be  underestimated;  above  all,  because  of  the  eco- 
nomic significance  that  an  accumulation  of  female  convic- 
tions would  have.  This  fact  seems  to  me  still  more  telling  as  a 
proof  that  women's  greater  participation  in  economic  compe- 
tition does  not  mean  greater  criminal  danger.  Embezzlement, 
fraud,  receiving  stolen  goods,  have  all  decreased,  in  spite  of 
the  fact  that  more  and  more  women  are  engaged  in  industrial 


§  15]  SEX  161 

and  commercial  life  or  as  working  women.  The  geographical 
distribution  also  shows  us  that  the  industrial  districts  are, 
for  the  most  part,  below  the  average,  as  regards  women's 
criminality.^  It  is  not  the  work  in  factories  and  shops  that 
produces  crime,  but  its  accompaniments,  especially  the  taking 
part  in  amusements  and  carousals.  The  increase  in  crime 
among  men  and  minors,  and  its  stagnation  among  women, 
can  only  be  explained  by  this  difference  in  the  mode  of  life  of 
the  two  sexes. 

TABLE  XXXII 2 

Convictions  per  100,000  Adults  of  the  Same  Sex 


Yeabs 

Men 

Women 

1882-1891     

1746 
2091 

375 

1892-1901     

394 

Total  percentage 

19.5% 

5% 

A  few  words  must  be  said  in  regard  to  the  question  whether 
the  lesser  criminality  of  women  is  not  perhaps  explicable  by 
the  fact  that  prostitution  claims  a  large  number  of  criminal 
women.  Lombroso  ^  positively  asserts:  "If  cases  of  prosti- 
tution are  included  in  the  criminal  statistics,  the  two  sexes 
are  at  once  placed  on  an  equality,  or  the  preponderance  may 
even  be  thrown  on  the  side  of  women."  He  himself,  indeed, 
contradicts  this  sentence  when  he  speaks  of  the  large  number 
of  convicted  juvenile  girls  (only  2%  in  Germany,  by  the  way) 
as  being  derived  from  the  "prostitutes  not  yet  of  age,"  and 
further,  when  he  emphasizes  the  high  criminality  of  prostitutes. 

1  Compare  in  this  connection  Map  IF  in  the  Statistics  of  the  German 
Empire,  N.  F.  CXLVI. 

2  Taken  from  the  Statistics  of  the  German  Empire,  N.  F.  CXLVI,  II,  37. 
'  "Crime:  its  Cau-ses  and  Remedies,'    p.  186,  "Modern  Criminal  Science 

Series";  Hortcn,  trans. 


162  THE  INDIVIDUAL  CAUSES  OF  CRIME        [§  16 

I  also  believe  it  is  true  that  we  may  sometimes  see  in  the 
prostitute  the  equivalent  of  the  criminal.  Many  a  young  girl 
would  resort  to  stealing  and  embezzlement  in  order  to  gratify 
her  desire  for  pleasure  and  dress,  if  prostitution  did  not  afiford 
her  an  easier  and  more  profitable  means  of  satisfying  her 
wishes. 

Nevertheless,  I  do  not  beheve  that  it  is  the  male  thief, 
street  robber,  or  forger  that  corresponds  to  the  prostitute, 
but  the  beggar  and  the  vagrant.  Only  in  a  very  slight  degree 
do  prostitutes  possess  the  qualities  that  are  essential  to  the 
carrying  out  of  graver  crimes,  to  deliberate,  purposeful  action 
(p.  93).  In  general,  they  are  apathetic  persons,  lacking  in 
energy  and  frequently  somewhat  weak-minded,  who  would 
not,  indeed,  stop  at  crime  if  occasion  should  offer  in  a  tempting 
form,  just  as  the  tramp  does  not  disdain  at  times  to  lay  hands 
on  others'  property.  But  on  the  whole,  beggars  and  vaga- 
bonds, as  well  as  prostitutes,  shirk  energetic  action. 

At  present,  then,  I  can  see  no  reason  for  regarding  prosti- 
tution as  a  kind  of  criminal  safety  valve  which  allows  the  active 
dangerous  inclinations  of  women  to  find  another  outlet;  it 
is  rather  a  substitute  for  the  relatively  harmless  beggar  and 
tramp. 

§  16.  Domestic  Status 

Judging  by  von  Oettingen's  ^  experience,  the  number  of  con- 
victed persons  is  nearly  everywhere  greater  among  the  unmar- 
ried than  among  the  married.  He  sees  in  this  "a  proof  of  the 
elevating  power  of  family  life,  in  spite  of  the  fact  that  the 
cares  of  occupation  and  of  providing  for  the  family  are  more 
numerous  in  this  case.  But  within  the  sphere  of  regulated 
domestic  and  business  life  such  cares  have  a  beneficial  influ- 
ence;  they  prevent  excesses."    In  contrast  to  this,  the  crim- 

'  Loc.  cit.  p.  524. 


§  16]  DOMESTIC  STATUS  163 

inal  statistics  of  the  German  Empire  point  out  that  "great 
caution  must  be  used  in  deducing  anything  from  the  influence 
of  domestic  status  on  criminality."  ^ 

Our  statistics  divide  criminals,  according  to  their  ages, 
into  three  groups  only:  from  21  to  40,  from  40  to  60,  and  60 
and  over.  In  the  first  group,  in  1901,  the  unmarried,  widowed, 
and  divorced  predominated  as  regards  most  ofiFenses,  those 
excepted  being  prison  breach,  insult,  simple  assault  and 
battery,  coercion,  embezzlement,  receiving  stolen  goods, 
extortion,  and  forgery.  Between  the  ages  of  40  and  60, 
robbery  and  violent  extortion  are  the  only  exceptions  in 
favor  of  the  unmarried.  Otherwise,  the  criminality  of  the 
married  is  considerably  higher.  Finally,  among  old  people, 
married  criminals  predominate  over  unmarried,  except  as 
regards  indecent  offenses,  grand  larceny,  fraud  and  arson. 

We  get  an  entirely  different  result  if  we  divide  these  groups 
according  to  sex;  I  give  the  most  important  figures,  taken  from 
Prinzing's  ^  calculations,  in  Table  XXXIII.  The  bringing 
of  the  figures  into  relation  with  100,000  persons  of  each  cate- 
gory, and  the  adoption  of  a  twelve-year  period,  guarantee  the 
reliability  of  the  conclusions.  Thus  considered,  the  figures 
show  undeniably  that  marriage  has  a  favorable  influence  on 
men.  This  does  not  apply  to  those  who  marry  as  early  as  under 
25  years;  they  commit  a  large  share  of  all  crimes.  One  of  the 
external  causes  is  undoubtedly  the  poverty  that  so  often  ac- 
companies early,  heedless  marriages.  In  such  cases  a  young 
and  immature  fellow,  who  is  scarcely  able  to  earn  his  own  sup- 
port, takes  upon  himself  the  care  of  a  wife.  Often  numerous 
children  are  born,  who  add  to  his  burden,  and  the  direct 
result  is  that  he  lays  hands  on  others'  property.     Moreover, 

1  "Statistik  des  Deutschen  Reiches,"  N.  F.  LVIII,  II,  p.  18. 

^  Priming,  "Die  Erhohung  der  Kriminalitiit  des  Weibes  durch  die  Ehe" 
(" Zeitschrift  fiir  Sozialwissenschaft,"  1900,111,  p.  433);  "Der  Einfluss  der 
Ehe  auf  die  Kriminalitat  des  Mannes,"  Ibid.,  1899,  II,  p.  37. 


164 


THE  INDIVIDUAL  CAUSES  OF  CRIME 


[§16 


at  this  age  men  are  not  apt  to  stay  at  home  with  their  wives 
and  children  instead  of  going  to  the  pubHc-house,  as  the  large 
number  of  them  that  are  convicted  of  simple  and  aggravated 
assault  and  battery  shows. 


TABLE  XXXIII 

(After  Pbinzing) 

Convictions  in  Gennany  1882-1893  per  100,000  men  and  women  of  each 
category: 


All  Crimes 
AND  Offenses 

Breach  of  the 
Peace 

Insult 

Assault  and 
Battebt 

AOE 

P3 
O 

0 

a 
o 

§ 

a 

O 
g 

0 

2  ° 
2  =* 

I 

0  ° 
2  ° 

3 

o 
g 

0 

OS 

< 

Men 

12-15  years 

661.1 

15-18      " 

1319.2 

1»-21      " 

2994.5 

6413.0 

141.7 

296.4 

111.1 

444.5 

960.6 

1309.3 

...    1 

21-25      " 

3107.0 

3566.3 

179.4 

192.4 

_ 

173.3 

279.0 

448.0 

949.1 

808.2 

1102.1 

25-30      " 

2950.9 

2504.7 

4273.7 

175.6 

144.8 

235.6 

222.9 

270.6 

381.4 

729.6 

518  9 

735.5 

30-40      " 

2880.9 

1961.2 

3797.3 

150.6 

105.8 

197.7 

277.3 

316.2 

377.3 

424.8 

298.1 

411.8 

40-50      " 

2205.7 

1487.8 

2626.3 

93.0 

75.1 

132.9 

240.7 

311.3 

317.3 

202.8 

180.8 

225.5 

60-60      •' 

1241.9 

1009.8 

1267.8 

39.0 

45.7 

51.9 

158.1 

237.7 

187.5 

91.7 

115.1 

107.6 

Over  60  " 

494.6 

490.1 

342.7 

11.0 

19.3 

11.2 

66.4 

122.9 

66.6 

31.5 

48.9 

29.8 

Women 

12-15  years 

149.5 

15-18      " 

320.5 

18-21      " 

415.2 

602.6 

5.4 

16.9 

24.3 

88.5 

20.4 

67.5 

21-25      " 

417.5 

469.9 

1339.3 

6.9 

13.3 

28.6 

34.9 

85.7 

157.1 

24.9 

61.1 

96.4 

25-30      " 

440.7 

454.5 

1149.2 

8.6 

15.2 

28.2 

44.2 

94.8 

137.1 

29.8 

58.7 

88.9 

30-40      " 

446.2 

500.0 

1029.9 

11.1 

21.2 

32.7 

57.3 

116.7 

138.4 

29.9 

61.0 

70.2 

40-50      " 

334.7 

468.2 

709.9 

10.6 

23.9 

27.2 

58.4 

121.4 

121.7 

21.3 

55.3 

46.8 

60-60      " 

221.5 

299.5 

369.2 

6.2 

15.3 

15.9 

43.6 

84.8 

77.1 

13.9 

33.9 

25.7 

Over  60  " 

102.2 

133.4 

111.2 

3.0 

6.0 

42 

22.4 

38.3 

26.7 

7.0 

14.2 

8.6 

With  increasing  age,  however,  the  criminality  of  married 
men  decreases.  Partly,  perhaps,  because  improvident  mar- 
riages are  rarer  among  older  people,  and  a  larger  percentage 
of  the  married  belongs  to  the  well-to-do  and  educated  class. 
Another  reason  is,  that  older  men  are  more  likely  to  stay  at 
home,  partly  because  they  lack  the  means  for  unnecessary 
expenses,  partly  because  the  pleasure  they  take  in  their  own 


§16] 


DOMESTIC   STATUS 


165 


homes  and  their  own  families  compensates  them  for  staying 
away  from  the  pubHc-house.  Another  fact  that  probably 
contributes  to  the  significance  of  this  change  is,  that  their 
criminal  past  and  their  preference  for  the  life  of  a  thief,  a 


TABLE  XXXIII  — (Continued) 

(After  Prinzing) 

Convictions  in  Germany  1881-1893  per  100,000  men  and  women  of  each 
category : 


1 
Petit  Labcent 

Gk.^nd 
Larceny 

i  Aiding,  and 
[     Receiving 
Stolen  Goods 

Fbaud  and 

DEF.iiCATION 

Maliciods 
Mischief 

Age 

3S 

o 

§ 

§ 

0 

OS 

0 

o 

S3 
H 

a 

o 

a 
a 

a 
a 
< 

a  0 
3  s 

0 
2; 

1 

s 

s) 

m 

0 

a 

•< 

>    ^ 

s 
0 

a 
a 
a 
< 

n 

0  0 
2  > 

M 

§ 

^a 

m     2 

^e 

cc 

S 

^Q 

Cfi 

S 

p:5 

aa 

S 

^a 

Men 

12-15  years 

15-18      " 

18-21      " 

551.7 

1418.3 

117.4    .  . 

42.0    .. 

117.4 

254.0 

188.4 

296.4 

21-25      " 

427.7 

685.9  6-27.2 

80.0  77.7 

36.2  70.1 

144.9 

156.0 

168.6 

136.1 

241.9 

25-30      " 

38-2.6 

412.6572.1 

60.8  41.0 

78.5 

35.5  43.8!  49.4 
39.8  37.2  63.6 

170.2 

109.0 

336.5 

144.6 

83.5 

200.7 

30-40      " 

4II.9 

296.9i550.0 

48.0:24.9 

68.2 

206.4 

91.9 

340.9 

139.4 

58.9 

136.4 

40-50      " 

365.0 

216.2  420.0 

28.8' 13.7 

38.3 

28.3  33.1  56.2 

172.0 

68.0 

212.0 

97.8 

39.5 

86.2 

50-60      " 

233.1 

151.6j231.1 

14.0    6.7 

13.8 

15.4  26.0  27.6 

92.7 

43.1 

88.6 

43.4 

23.7 

34.6 

Over  60" 

109.2 

84.0 

67.2 

3.4!   2.3 

2.1 

5.8 

13.4 

7.8 

33.6 

18.2 

17.5 

12.2 

11.9 

9.0 

Women 

12-15  years 

110.3 

6.7'   .. 

15-18     " 

194.9 

12.3    .. 

18-21      " 

210.6 

209.3 

13.0il4.1 

9.2  33.7 

37.8 

36.6 

4.7 

7.1 

21-25      " 

177.1 

147.8 

385.7 

11.3    8.0 

28.6 

10.6  26.3148.2 

35.6 

23.4 

94.6 

5.4 

6.1 

21.4 

25-30      " 

158.5 

132.0 

318.5 

9.3    6.5 

12.lll2  6  23.9  52.4 

35.0 

18.7 

80.7 

5.8 

5.7 

14.5 

30-40      " 

136.6 

127.1 

265.9 

6.2    5.4 

12.5  17.2  32.6i  61.3 

31.1 

17.7 

58.5 

7.4 

6.3 

11.2 

40-50      " 

92.2 

104.0 

175.9 

3.7    3.5 

5.9il6.1  36  4  56.4 

20.9 

15.5 

33.8 

5.1 

6.1 

8.9 

50-60      " 

61.2 

64.4 

88.6 

1.9    1.7 

2.5  11.422.6  29.6 

11.9 

9.5 

15.7 

3.8 

4.2 

4.7 

Over  60  " 

32.0 

31.1 

28.0 

0.4    0.6 

0.4    4.5j  8.8     7.4 

6.1 

4.7 

3.7 

1.8 

1.9 

1.5 

tramp,  or  a  drunkard,  is  in  many  cases  the  reason  that  the 
unmarried  never  marry,  and  thus  they  influence  unfavorably 
the  number  of  unmarried  criminals.  That  a  man  is  neces- 
sarily, as  Prinzing  believes,  favorably  influenced  by  living  with 
a  member  of  the  female  sex,  in  which  criminality  is  much 
lower,  does  not  seem  to  me  so  certain. 

When  we  see  how  much  higher  the  criminality  of  married 


166  THE  INDIVIDUAL  CAUSES  OF  CREVIE        [§  16 

women  is  than  that  of  unmarried,  it  almost  seems  as  if  this 
were  due  to  the  intimacy  of  the  married  woman  with  the  man, 
whose  criminal  inclinations  are  more  pronounced.  We  might 
naturally  assume  that  the  married  woman,  who  is  supposed  to 
be  "provided  for,"  would  be  less  liable  to  engage  in  criminal 
activity.  But  this  is  not  the  case,  above  all  as  regards  young 
women,  who  up  to  their  twenty-first  year  are  responsible  for 
a  large  number  of  the  thefts  committed.  Later,  however, 
theft,  in  particular,  is  rarer  among  married  than  among 
unmarried  women.  Partly,  probably,  because  in  later  years  a 
married  woman  is  generally  able  to  depend  on  her  husband  for 
her  daily  bread,  and  because  older  women  of  the  poorest  classes 
are  often  able  to  live  on  astonishingly  little.  WTien  a  mature 
married  woman  transgresses,  it  is  generally  as  an  accessory,  a 
receiver  of  stolen  goods,  or  an  offender  against  trade  regulations. 

Convictions  for  assault  and  battery,  for  breach  of  the 
peace,  for  insult,  increase  among  married  women.  Prinzing 
connects  this  with  the  practice  of  drinking.  "  In  many  places 
it  is  customary  for  a  woman  to  accompany  her  husband  on 
Sunday  when  he  goes  to  the  public-house,  and,  although 
this  is  often  the  best  way  of  preventing  his  drinking  to  excess, 
yet  it  sometimes  happens  that  the  woman  is  drawn  into  the 
dreadful  vortex." 

I  admit  this,  but  would  lay  much  greater  stress  on  another 
source  of  these  crimes.  Almost  without  exception  I  have  found 
that  insult  and  breach  of  the  peace  were  the  result  of  two 
or  more  women's  living  together.  In  the  large  tenement 
house,  the  use  of  common  passages,  gardens,  yards,  cellars, 
and  storerooms  is  the  source  of  endless  disputes  and  friction. 
The  relations  between  the  parties  gradually  become  more 
strained,  until  some  trifle,  frequently  an  act  of  one  of  the 
children,  gives  rise  to  a  scene  that  often  ends  in  insults  and 
an  assault. 


§  16]  DOMESTIC   STATUS  167 

The  proof  that  it  is  not  the  gravest  crimes  for  which  married 
women  are  responsible  is  consoling,  but  not  so  the  fact  that, 
on  the  whole,  the  criminality  of  married  women  is  increasing 
while  that  of  unmarried  women  is  not.  This  increase  of  crime 
among  married  women  corresponds  to  the  spread  of  the  causes 
of  their  principal  offenses.  The  more  women  frequent  public- 
houses,  and  the  more  large  families  are  packed  together  in 
small  spaces,  the  greater  is  the  danger  of  conflicts.  If  we 
could  prevent  women  from  becoming  more  and  more  regular 
patrons  of  public-houses,  and  if  we  could  introduce  single, 
instead  of  large,  tenement  houses,  the  criminality  of  the  mar- 
ried would  soon  fall  below  that  of  the  unmarried,  and  the 
beneficial  influence  of  family  life  would  appear.  I  wish  es- 
pecially to  emphasize,  however,  that,  even  if  these  external 
conditions  were  favorable,  it  would  still  be  necessary  for  us 
to  do  everything  possible  to  prevent  too  early  marriages. 
The  greatest  danger  lies  in  them;  unfortunately,  the  law  does 
not  permit  us  to  hinder  the  marriage  of  those  who  are  physi- 
cally and  mentally  immature  and  of  those  who  are  econom- 
ically incompetent.  The  reduction  by  the  Civil  Code  of  the 
age  up  to  which  the  parent's  consent  is  necessary,  from  25  to 
21,  was  a  great  error  from  the  standpoint  of  criminal  policy. 

A  remarkable  phenomenon  is  the  high  criminality  of  the 
widowed  and  divorced,  which  is  lower  only  among  those 
over  60  years.  I  must  confess  that  I  know  of  no  explanation 
of  this.  Prinzing  thinks,^  "the  loss  of  the  husband  or  wife 
often  produces  a  mental  disturbance  in  the  other  spouse; 
we  may  also  suppose  that  many  widowers  find  it  difficult  not 
to  lose  their  moral  balance."  It  is  not  clear  why  this  latter 
should  be  so,  particularly  as  we  find  the  same  high  criminality 
among  widowed  and  divorced  women.  It  would  seem  more 
probable  that  some  marriages  are  dissolved  because  of  crim- 
*  Loc.  cit.  p.  125. 


168  THE  INDIVIDUAL  CAUSES  OF  CRIME         [§  17 

inal  acts,  so  that  later  crimes  are  only  a  continuance  of  the 
former  mode  of  life.  It  is  an  error,  however,  to  beheve  that  a 
widower  (why  not  also  a  widow?)  frequently  becomes  insane 
owing  to  " grief."  If  this  does  occur  —  I  personally  have  never 
known  of  such  a  case  —  it  must  be  only  as  an  exception, 
without  any  bearing  on  criminal  statistics. 

No  explanation  can  be  given  at  present.  Light  might  per- 
haps be  thrown  on  the  subject  if  the  widowed  and  divorced 
were  considered  separately. 

§  17.  The  Physical  Characteristics  of  the  Criminal 

The  question  whether  psychic  qualities  appear  in  exter- 
nally visible  phenomena  has  always  attracted  thinking  men. 
The  temptation  to  seek  for  such  external  signs  increases  with 
the  consciousness  of  how  difficult  it  is  to  decipher  a  man's 
character.  Common  experience  of  the  ease  with  which  we 
mistake  others'  thoughts  and  feelings  positively  cries  out  for 
objective  signs  to  supplement  our  subjective  judgment. 

The  problem  is  still  unsolved.  The  names  of  Lavater, 
Gall,^  Spurzheim,  and  Lombroso,  as  well  as  the  interpretation 
of  handwriting,  represent  efforts  that  are  as  various  as  they  are 
different  in  value  for  finding  such  signs.  Nevertheless,  we 
are  far  from  knowing  reliable  external  signs  of  qualities  of 
character.  Hitherto  all  efforts  in  this  direction  have  been  in 
vain;  they  failed  because  the  value  of  the  few  details  they 
discovered  was  always  exaggerated. 

Lombroso 's  teachings  have  always  been  defended  with  more 

heat  than  objectivity,  and  it  may  be  asserted  of  many  of  his 

opponents,  that  they  have  carried  on  a  bitter  fight  against 

'  Gall  is  by  no  means  merely  a  \'isionary  or  a  swindler  as  many  represent 
him  to  be.  In  fact,  much  credit  is  due  him  for  his  study  of  the  anatomy  of 
the  brain,  credit  that  has  been  forgotten  in  the  justified  attacks  on  his  phren- 
ology. Compare  Mobius,  "Uber  die  Anlage  zur  Mathematik,"  Leipzig,  1900. 
Joh.  Ambr.  Barth,  p.  197. 


§  17]  PHYSICAL  CHARACTERISTICS  OF  CRIMINALS     169 

him  wnthout  having  an  absolutely  clear  idea  of  his  doctrines. 
It  is  not  so  easy  to  form  a  clear  idea,  because  in  course  of 
time  he  changed  many  of  his  original  assertions.  But  to 
reproach  him  with  having  done  so,  seems  to  me  entirely  with- 
out justification;  some  of  his  untenable  earlier  statements 
gave  way  to  better  knowledge.  Of  one  failing,  however, 
Lombroso  cannot  be  acquitted,  of  a  surprising  lack  of  critical 
faculty.  He  makes  use  of  accurate  and  careful  measurements, 
anecdotes  and  proverbs,  statistical  data  and  subjective  im- 
pressions, inscriptions  written  on  prison  walls  from  monotony, 
observations  of  individuals  and  phenomena  of  masses,  with- 
out distinguishing  sharply  between  what  is  important  and 
what  is  unimportant.  In  his  later  editions  numerous  statistics 
are  repeated  which  are  undeniably  erroneous.  This  lack  of 
reliability  is  due,  in  part,  to  the  multifariousness  of  his  pub- 
lications, which  made  deeper  and  thorough  study  impossible, 
but  it  is  probably  owing  to  natural  superficiality. 

It  would  be  unjust,  however,  to  judge  him  only  by  his  faults. 
They  have  simply  made  it  easy  for  his  opponents  to  stamp  him 
and  his  doctrines  as  unscientific.  I  consider  Lombroso's  the- 
ory of  the  born  criminal  erroneous,  nor  do  I  agree  with  many 
of  his  assertions,  but,  just  because  I  count  myself  among  his 
opponents,  I  think  it  necessary  to  declare  that,  without  him, 
criminal  psychology  would  never  have  made  the  advance  the 
fruitful  results  of  which  we  are  now  gathering.  I  must 
acknowledge  that  Gaupp  ^  is  right  when  he  says:  "The 
researcher  (Lombroso),  with  his  wealth  of  ideas  and  his 
intuition,  is  a  scientific  phenomenon  in  whom  much  light 
and  shade  are  united;  the  genuine  kernel  of  his  doctrines 
will  long  outlive  the  achievements  of  many  of  his  sharpest 
opponents." 

*  Gaupp,  "Ober  den  heutigen  Stand  der  Lehre  vom  'geborenen  Ver- 
brecher'"  (MSchrKrimPsych.  I,  33). 


170  THE   INDIVIDUAL  CAUSES  OF  CRIME         [§17 

Kurella/  Lombroso's  most  faithful  adherent  in  Germany, 
thus  sums  up  the  latter's  doctrine  of  the  "born  criminal": 
"This  hypothesis  supposes  that  all  true  criminals  possess  a 
definite  causally  connected  series  of  physical  characteristics, 
anthropologically  provable,  and  psychic  characteristics,  psy- 
cho-physiologically  provable,  which  show  them  to  be  a  partic- 
ular variety,  a  special  anthropological  type.  This  series  of 
characteristics  necessarily  makes  its  possessor  a  —  perhaps 
undiscovered  —  criminal,  quite  independent  of  all  the  social 
and  individual  conditions  of  life." 

Lombroso  denies  neither  the  significance  of  the  individual's 
acquired  characteristics  nor  that  of  social  influences,  he  does 
not  dispute  the  existence,  either  of  criminals  of  passion,  or  of 
occasional  and  habitual  criminals.  In  his  last  work  ^  the  dis- 
cussion of  external  causes  even  occupies  by  far  the  most 
space;  the  anatomical  characteristics  of  the  "delinquente 
nato"  are  almost  entirely  lacking.  Yet  he  tenaciously  holds 
to  his  theory  that  about  35%  of  all  criminals  ^  are  born  crim- 
inals, and  that  they  bear  numerous  marks  that  differ  from  the 
normal. 

Before  we  proceed  to  examine  the  correctness  of  these  views, 
especially  in  their  further  development,  which  represents 
the  "uomo  delinquente"  as  a  peculiar,  atavistic  type,  we  must 
review  what  we  know  of  the  body  and  mind  of  the  criminal. 

This  is  more  difficult  than  it  seems.  Precisely  in  this  field 
of  investigation  a  tremendous  amount  has  been  produced; 
dilettantism  works  side  by  side  with  careful  and  critical  re- 
search, and  it  is  the  more  difficult  to  obtain  a  clear  view  be- 
cause we  are  concerned  with  the  most  complicated  questions 
imaginable.    We  have  no  canon  of  the  normal  man  by  which 

*  Kurella,  "  Naturgeschichte  des  Verbrechers,"  p.  2. 

*  Lombroso,  "Die  Ursachen  und  Bekampfung  des  Verbrechena." 
»  Ibid.,  p.  326. 


§  17]  PHYSICAL  CHARACTERISTICS  OF  CRIMINALS     171 

to  measure  all  deviations.  We  cannot  simply  compare  the 
German  with  the  Italian,  the  Northerner  with  the  Southerner, 
for  it  needs  but  a  glance  to  convince  us  that  the  average  type 
of  the  Lombards  or  of  the  tall  and  vigorous  people  of  the 
Romagna  is  far  removed  from  that  of  the  small  Southern 
Italian.  On  the  other  hand,  intermarriage  between  the 
races  has  resulted  in  a  vast  decline  of  the  pure  national  type. 
This  makes  it  even  more  difficult  to  adopt  a  type  with  which 
the  criminal  can  be  compared. 

A  further  obstacle  lies  in  this,  that  we  cannot  easily  obtain 
indisputably  normal  material  for  comparison.  For,  with  a 
regiment  of  soldiers,  for  instance,  even  if  we  leave  out  all  who 
have  already  come  into  conflict  with  the  law,  and  all  of  ques- 
tionable mentahty  —  who  are  not  lacking  in  the  army  — 
it  is  still  a  question  whether,  among  those  that  remain,  some 
are  not  criminally  inclined.  Many  a  man  whose  evil  deeds 
are  by  no  means  slight  has  escaped  criminal  prosecution,  and 
many  another  has  only  external  and  fortunate  circumstances 
to  thank  for  it  that  his  criminal  tendencies  are  active  in  a 
sphere  that  lies  outside  the  criminal  code.^ 

Most  serious  of  all  is  the  fact  that  we  are  unable  exactly 
to  define  what  must  be  recognized  as  a  mark  of  degeneration. 
Kraepelin's  ^  definition  reads:  "We  are  accustomed  to  regard 
certain  defects  in  development  which  occur  with  some  fre- 
quency among  those  of  unfortunate  heredity  as  physical  signs 
of  hereditary  degeneration  ('stigmata  hereditatis')."  But 
it  is  difficult  to  define  the  sphere  within  which  all  deviations 
in  development  must  be  regarded  as  still  normal. 

Naecke^  is  quite  right  in  pointing  out  that  we  cannot 

^  Ferriani,  "Delinquenti  scaltri  e  fortunati,"  Como,  1897. 

*  Kraepelin,  "Psychiatric,"  7th  ed.,  1903,  Joh.  Ambr.  Barth.,  Leipzig,  L 
122. 

'  Naecke,  "Degeneration,  Degenerationszeichen  und  Atavismus"  (Arch. 
Krim.  Anthr.  I,  202). 


172  THE  INDIVIDUAL  CAUSES  OF  CRIME         [§17 

regard  as  a  sign  of  the  degeneration  of  the  nation  in  question 
anything  that  is  ethnically  conditioned.  The  conception 
"mark  of  degeneration"  must  always  be  determined  in  relation 
to  time,  place,  age,  and  sex,  and  a  certain  margin  for  devi- 
ation from  the  average  must  always  be  allowed. 

It  is  less  important  for  us  whether  the  deviations  from  the 
average  structure  of  the  body,  and  defects  in  the  development 
of  its  organs,  are  really  to  be  looked  upon  as  degenerative 
phenomena  or  as  anatomical  variations,  as  Stieda  asserts. 
Among  insane  persons,  criminals,  and  healthy  persons,  we 
find  a  varying  number  of  anomahes,  some  of  which  bring  about 
a  considerable  functional  disturbance  in  the  organs  affected. 
We  see  that  such  malformations  and  deviations  from  the 
average  type  are  rare  among  healthy  persons  and  numerous 
among  insane  ones.  We  find,  further,  that  they  are  most 
pronounced  where  injurious  influences,  alcoholic  excesses 
of  parents,  for  instance,  have  affected  the  children;  and 
finally,  experience  teaches  us  that  persons  in  whom  several 
of  such  anomalies  are  found  are  thereby  rendered  inferior 
and  less  capable  of  resistance.  All  this  justifies  us  in  calling 
these  disturbances  in  the  organism  marks  of  degeneration,  in 
the  clinical  sense. ^ 

In  1899  Lombroso^  asserted  that  in  the  course  of  a  few  years 
the  criminal-anthropological  school  had  examined  54,131  in- 
sane, criminal,  and  normal  persons.  It  is  particularly  diffi- 
cult  to  select  the  useful  material  from  this  abundance,  because 
the  results  are  often  sharply  and  irreconcilably  contradictory. 
Precisely  in  the  sphere  of  physical  examinations  I  have  no 
systematic  investigations  of  my  own  at  my  disposal.     I  be- 

^  Naecke,  "Uber  den  Wert  der  sogenannten  Degenerationszeichen" 
(MSchrKrimPsych.  I,  202). 

2  Lombroso,  "Neue  Fortschritte  in  den  Verbrecherstudien";  translated  by 
Merian,  Gera,  1899,  C.  B.  Griesbach. 


§  17]  PHYSICAL  CHARACTERISTICS  OF  CRIMINALS     173 

lieve,  however,  that  it  is  possible,  without  quoting  too  many 
details  and  figures,  to  give  a  summary  of  the  present  status 
of  such  research. 

The  brain  and  the  skull  claim  our  chief  interest,  the  brain 
as  the  seat  of  the  psychic  functions,  the  skull  because  it  is  the 
key  to  the  size  and  appearance  of  the  brain.  The  latter  is  so 
complicated  in  structure  that  it  is  undoubtedly  difficult  to 
determine  the  boundaries  of  the  normal.  Even  its  most  ex- 
ternal quality,  weight,  varies  greatly.  Welcker  established 
a  weight  of  1388  grams  as  the  limit  of  the  normal.  A  later 
investigation  undertaken  by  Handmann  ("Archiv  fiir  Ana- 
tomic und  Physiologic,"  1906,  p.  1)  also  established  1370 
grams  as  the  average  weight  of  a  grown  man's  brain.  But 
while  many  eminent  men  had  considerably  heavier  brains 
(Cromwell,  Cuvier,  Turgenieff,  Byron,  Schiller,  Volta,  and 
others)  many  who  were  not  less  gifted  had  brains  weighing 
considerably  less  (for  instance,  Dante,  the  anatomist  Dollinger, 
Gambetta,  Gall) .  The  heaviest  brains  that  Bischoff  ^  himself 
observed  belonged  to  ordinary  and  unknown  workmen,  and, 
lately,  a  brain  weighing  even  well  over  2000  grams  has  been 
found  in  an  idiot.  This  is  the  best  proof  that  it  is  not  the 
outside  measurements  and  weighable  qualities,  like  size  and 
heaviness  of  the  brain,  that  are  of  importance,  but  its 
structure.^ 

Within  the  margin  of  the  normal,  the  structure  of  the  brain 
differs  to  such  an  extent  that  it  is  difficult  to  judge  of  the  value 
of  striking  deviations.  Moreover,  a  perfectly  regular  formation 
of  the  brain  is  no  proof  of  mental  health.  Outwardly  the  brain 
may  appear  to  be  perfectly  normal,  but  we  may  occasionally 
find  serious  changes  in  its  cortex  which  cannot  be  combined 

^  Bischoff,  "Das  Himgewicht  des  Menschen,"  Bonn,  1880,  p.  136. 
*  Draeseke,   "Gehirngewicht  und  Intelligenz"   (Archiv  fiir  Rassen-  und 
Gesellschaftsbiologie,  1906,  p.  518). 


174  THE  INDIVIDUAL  CAUSES  OF  CRIME         [§  17 

with  mental  health.^  Often  neither  a  macroscopic  nor  a 
microscopic  examination  will  disclose  defects,  although  the 
possessor  of  the  brain  unquestionably  suffered  from  a  serious 
mental  disorder.  I  mention  this  especially,  because  errone- 
ous ideas  about  the  results  of  post  mortem  examinations  often 
exist.  They  sometimes  enable  us,  especially  microscopic 
examinations  of  the  cortex  of  the  brain,  to  say  definitely 
that  disease  existed,  but  never  to  affirm  with  certainty  that 
the  brain  was  healthy. 

According  to  Benedikt,  Mingazzini,  and  others,  the  signifi- 
cance of  the  deviations  in  the  configuration  of  the  brain  should 
lie  in  this,  that  within  the  margin  of  variation  the  brain 
convolutions  found  in  criminals  show  atypical  and  atavistic 
formations  much  more  frequently  than  do  those  found  in 
normal  individuals.  A  Russian  anatomist,  Sernoff,^  has  lately 
made  a  special  study  of  these  deviations;  his  explanations 
deserve  to  be  held  in  the  highest  esteem,  because  he  has  long 
devoted  himself  to  the  subject  of  the  brain.  He  rejects  most 
of  the  anomalies  described,  because  he  shows  that,  although 
they  do,  indeed,  occur  somewhat  more  frequently  in  criminals 
than  in  others,  yet  they  are  to  be  regarded  as  variations  of  the 
normal  type  of  convolution.  There  was  one  exception  to 
this  rule:  the  separation  of  the  calcarine  fissure  from  the 
occipito-parietal  fissure  was  found  in  1%  of  the  brains  of 
normal  persons,  in  8%  of  those  of  criminals.  Sernoff  admits 
that  this  combination  of  convolutions  "forcibly  reminds  one 
of  the  relations  in  microcephalic  individuals  and  certain  repre- 

1  According  to  Kraepelin  ("Psychiatrie,"  7th  ed.,  II,  823),  "In  two  cases 
of  congenital  obtuse  lack  of  feeling,  which  in  both  cases  led  to  murder  and  the 
guillotine,  Nissl  found  unquestionable  chronic  changes  in  the  cells  of  the 
cortex,  a  proof  that  in  people  who,  like  these  two,  are  not  regarded  as  insane 
but  as  morally  corrupt,  a  pathological  condition  of  the  brain  may  be  found." 

*  Sernoff,  "Die  Lehre  Lombroso's  und  ihre  anatomischen  Grundlagen  im 
Lichte  moderner  Forschung"  (Biologisches  Zentralblatt,  XIV,  305). 


§  17]  PHYSICAL  CHARACTERISTICS  OF  CRIMINALS     175 

sentatives  of  the  animal  kingdom,  and  that  it  has  long  been 
regarded  as  an  atavistic  phenomenon." 

All  other  deviations  in  the  brain  and  skull  SemoflF  either 
denies  outright  or  strips  of  their  significance.  This  applies, 
above  all,  to  the  relative  smallness  of  the  frontal  bone,  or, 
rather,  of  that  part  of  the  frontal  bone  that  covers  the  frontal 
lobes  of  the  brain.  The  fact  that  the  average  value  of  this 
part  of  the  skull  is  lower  in  criminals  than  in  non-criminals 
is  confirmed  by  Sernoff ;  but  at  the  same  time  he  points  out 
that  there  is  no  fixed  relation  between  the  size  of  the  frontal 
bone  and  the  brain  lobes,  that,  on  the  contrary,  a  small  fore- 
head often  contained  a  frontal  brain  above  the  average  in  size 
and  vice  versa. 


TABLE  XXXIV 


Pbogna- 

THISM 


Pbom. 
Obbi. 
Cdbve 


Receding 
fobeheab 


Kurella  (3641  cases) 
Baer  (968  cases)  .    . 


12.6% 

20.4% 


11.8% 
3.2% 


7.9% 
4.7% 


Still  another  assertion  of  the  Lombroso  school  is  recognized 
by  Sernoff  as  correct.  "The  relatively  strong  development 
of  the  skeleton  of  the  face  with  the  resultant  prognathism 
(protrusion  of  the  facial  part  of  the  skull)  and  the  receding 
forehead."  These  deviations  are  clearly  shown  in  the  two 
drawings  taken  from  Kurella's  book. 

In  Table  XXXIV  Kurella's  summary  of  the  frequency 
with  which  these  deviations  are  found  is  compared  with 
Baer's  calculations. 

I  have  purposely  compared  precisely  these  two  authors 
with  each  other:  Kurella  who  for  years  has  been  an  eager 
and  gifted  adherent  of  Lombroso,  possessing  an  unusual 
knowledge  of  the  literature  bearing  on  the  subject,  and  who 


176 


THE  INDIVIDUAL  CAUSES  OF  CREVIE 


[§17 


represents  Lombroso's  teachings  in  Germany,  and  Baer/ 
who,  as  an  opponent  of  the  theory  of  the  born  criminal, 
has  based  his  view  on  particularly  careful  investigations 
of  his  own.  Baer,  also,  as  we  see,  confirms  the  fact  that  these 
deviations  occur  frequently. 


(Drawings  from  Kurella.) 

The  angle  hfg  is  used  to  measure  to  slope  of  the  forehead,  the  angle  hHn 
to  measure  the  prognathism,  which  is  seen  externally  in  the  pronounced  pro- 
jection of  the  upper  jaw  and  in  the  protruding  teeth.  These  anomalies  are 
usually  combined  with  prominence  of  the  orbital  curve. 


The  size  of  the  skull  has  been  the  object  of  many  detailed 
investigations.  Kjiecht's  ^  figures  and  Baer's  do,  indeed, 
diflfer,  but  they  enable  us  to  perceive  that  unusually  small 
and  strikingly  large  heads  are  not  rare  among  criminals. 
Among  1214  convicts  Knecht  found  as  many  as  2%  with 

*  A.  Baer,  "Der  Verbrecher  in  anthropologischer  Beziehung,"  Leipzig, 
Georg  Thieme,  1893. 

2  Knecht,  "Uber  die  Verbreitung  physischer  Degeneration  bei  Verbrechem 
und  die  Beziehungen  zwischen  Degenerationszeichen  und  Neuropathien " 
(Allg.  Zeitschrift  fiir  Psychiatrie,  XL,  589). 


§  17]  PHYSICAL  CHARACTERISTICS  OF  CRIMINALS     177 

pronounced  hydrocephalic  head  formations,  indicating  path- 
ological processes  in  the  earhest  period  of  development. 

As  often  as  a  new  field  of  criminal  anthropological  inves- 
tigations has  been  attacked,  the  same  thing  has  been  repeated. 
First,  the  assertion  is  made  that  a  certain  form  of  deviation 
is  characteristic  of  the  criminal.  Then  it  is  proved  that  the 
same  phenomena  are  found  in  non-criminals,  and  finally, 
it  is  shown  that  these  anomalies  are  somewhat  more  frequent 
in  criminals.  Hence,  it  would  lead  only  to  useless  repetitions 
if  I  should  take  up  each  of  the  marks  of  degeneration  in  turn 
and  speak  of  what  has  been  found  to  contradict  them.  The 
most  important  physical  signs  of  degeneration,  such  as  ill- 
formed  ears,  extra  fingers  and  toes,  the  abnormal  position 
and  formation  of  the  teeth,  abnormal  formations  of  the  sexual 
organs  and  the  mammary  glands,  unequal  development  of  the 
body,  etc.,  are  all  found  in  healthy  people  as  well.  They 
are  the  more  numerous,  the  nearer  we  approach  to  the  de- 
generate insane.  Between  the  two  stands  the  criminal. 
Even  Lombroso's  most  eager  and  decided  opponents  do  not 
deny  that  degenerative  signs  are  found  particularly  often 
in  criminals.  Thus  Naecke  ^  says:  "We  can  only  refer  to  a 
possible,  perhaps  probable,  inferiority  of  those  who  bear  the 
stigmata  of  degeneration,  no  more;  even  that,  however, 
may  be  valuable  in  foro '  or  to  corroborate  a  diagnosis."  And 
recently  he  has  gone  farther:^  "The  longer  and  the  more 
accurately  we  investigate,  the  more  do  we  value  the  doctrine 
of  degeneration,  without,  however,  trusting  to  it  blindly, 
as  do  some  of  the  Italians." 

I  should  not  care  to  go  as  far  as  Naecke  in  the  forensic 


*  Naecke,  "Degeneration,  Degenerationszeichen  unci  Atavismus"  (Arch. 
Krim.  Anthr.  I,  216). 

^  Naecke,  "Uber  den  Wert  dor  sogenannten  Degenerationszeichen" 
(MSchrKrimPsych.  I,  108). 


178  THE  INDIVIDUAL  CAUSES  OF  CRIME         [§18 

judgment  of  a  criminal;  I  consider  it  inadmissible  to  make 
even  the  slightest  use  of  the  existence  of  marks  of  degeneration, 
even  in  the  most  pronounced  form,  to  tip  the  scale  in  a  case 
of  questionable  guilt.  Nevertheless,  what  cannot  be  applied 
to  the  individual  criminal  may  yet  have  general  validity. 

I  share  this  view  with  Baer,  who,  in  spite  of  his  cautious 
criticism,  is  obUged  to  admit:  "Abnormalities  of  a  simple  or 
graver  kind  are  often  found  in  criminals  singly,  or  in  larger 
numbers,  and  although  there  is  nothing  specific  in  them, 
yet  they  are  signs  of  the  inferior  value  of  the  criminal's 
organization."  ^ 

In  reality,  we  should  not  wonder  at  finding  so  many  crim- 
inals physically  inferior;  the  contrary  might  well  excite 
surprise.  By  far  the  largest  number  of  criminals  come  out  of 
classes  in  which  poverty  and  wretchedness  are  common, 
in  which  underfed  women  during  pregnancy  must  often  use 
up  their  strength  in  hard  work;  the  unborn  child  is  often 
poisoned  in  the  germ  by  the  drunkenness  and  disease  of  its 
parents.  This  cannot  be  met  with  the  statement  that  our 
poorer  classes  are  still  able  to  provide  a  physically  fit  army. 
Not  all  those  degenerate,  who  are  subject  to  the  conditions  of 
degeneration;  not  all,  but  many.  The  descent  of  criminals 
(compare  p.  124)  proves  that  the  recruits  of  the  criminal 
world  are  most  often  found  among  the  children  of  drunkards 
and  the  insane,  among  the  poorest  of  the  poor;  in  view  of  this, 
the  existence  of  signs  of  degeneration  ceases  to  be  striking, 
and  the  signs  themselves  cease  to  bear  the  specific  character 
of  a  phenomenon  peculiar  to  crime, 

§  18.  The  Mental  Characteristics  of  the  Criminal 

In  considering  these  mental  characteristics  we  are  on  firm 
ground  as  long  as  we  keep  to  the  intellectual  abilities.    The 

'  Baer,  he.  cit.  p.  117. 


§  18]  MENTAL  CHARACTERISTICS  OF  CRIMINALS  179 

degree  of  knowledge  and  the  power  of  judgment  that  a  man 
possesses  can  be  ascertained.  On  the  other  hand,  we  at  once 
enter  upon  an  uncertain  field  as  soon  as  we  examine  the 
emotional  life,  the  passions,  the  moral  sense;  then  we  turn 
from  objective  facts  to  subjective  impressions. 

The  fact  that  the  intellectual  capacity  of  the  criminal  is 
far  below  the  average  has  already  been  made  the  subject 
of  a  detailed  discussion.  The  experience  of  teachers  and  over- 
seers in  penal  institutions  fully  confirms  it.  The  subjects  in 
which  the  teacher  instructs  the  prisoners  are  extremely 
elementary,  and  yet  the  results  of  his  efforts  are  pitifully 
small.  Undoubtedly  the  dislike  of  learning  plays  a  part,  but 
it  is  certainly  not  all-important.  A  superficial  examination  of 
405  prisoners  with  sentences  of  over  six  months  showed  me 
that,  apart  from  31,  whose  mental  state  I  shall  speak  of  later, 
67  were  more  or  less  feeble-minded,  certainly  far  below  normal 
in  their  intelligence;  8  of  them  were  decided  imbeciles,  almost 
idiots. 

Both  Baer  ^  and  Kirn  ^  have  tried  to  combat  Lombroso's 
teachings,  and  Baer  in  particular  has  spent  infinite  pains  in 
examining  the  assertions  of  the  Italian  school,  with  a  view  to 
corroborating  or  refuting  them;  both,  however,  have  empha- 
sized the  low  plane  of  the  criminal's  intellectual  development, 
Baer  expressly  pointing  out  that  "social  environment  and 
educational  conditions  cannot  be  held  accountable  for  it." 
Hence  Sommer  ^  is  undoubtedly  justified  in  saying:  "In  the 
general  rejoicing  at  the  refutation  of  Lombroso  in  detail, 
the  positive  facts  were  entirely  overlooked,  which  he  [Baer] 
contributed  to  the  doctrine  that  there  are  inherent  momenta 
that  lead  to  crime." 

>  Baer,  loc.  cit.  p.  246. 

*  Kim,  "  Geistesstbrung  und  Verbrechen.  Festschrift  der  Anstalt  Elenau," 
Heidelberg,  1902,  p.  97. 

*  Sommer,  "Kriminalpsychologie,"  Leipzig,  1904,  p.  313. 


180  THE  INDIVIDUAL  CAUSES  OF  CRIME         [§  18 

I  purposely  emphasize  so  strongly  the  low  mental  status  of 
criminals,  for  it  explains,  without  the  aid  of  unprovable  the- 
ories, why,  with  many  criminals,  the  ethical  perceptions  are 
so  strikingly  distinguished  from  those  of  the  average  man. 
The  weak-minded  are  generally  children  of  the  moment. 
Everything  makes  a  deep  impression  on  them  for  the  minute; 
often,  indeed,  the  mental  response  is  particularly  vivid; 
but  this  momentary  leaping  up  of  the  intelligence  subsides 
again  as  quickly.  The  lessons  of  experience,  which  serve 
normal  persons  as  a  guide  in  later  events,  soon  fade,  because 
they  cannot  be  fitted  into  the  existing  condition  of  the  ideas. 
The  inability  to  understand,  much  less  to  form  general  points 
of  view,  is  the  direct  result  of  mental  weakness. 

This  is  the  picture  that  many  criminals  present  to  us.  I 
must  confess  that,  after  reading  the  papers  in  the  case,  I  was 
often  prepared  to  see  a  rough,  brutal  man,  when,  in  reahty, 
I  found  a  quiet,  docile,  and  even  good-natured,  feeble-minded 
fellow.  This  is  true  not  only  of  those  who  are  sentenced  for 
the  first  time;  precisely  among  people  with  long  criminal 
records  I  often  found  such  quiet,  feeble-minded  persons;  by 
this  I  do  not  mean  imbeciles  of  such  defective  mentality  that 
our  existing  laws  would  classify  them  as  irresponsible. 

These  people  —  and  this  applies  also  to  a  large  number 
with  average  intelligence  —  are  often  strikingly  unstable,  — 
not  in  the  penal  institutions,  where  they  often  submit  to  the 
regulations  of  the  house  without  any  difficulty,  where  they 
work  industriously  under  pressure,  but  when  at  liberty,  when, 
in  spite  of  the  best  resolutions,  they  give  way  to  the  first 
temptation. 

At  present  we  are  not  able  to  describe  the  psychology  of 
the  criminal.  In  the  first  place,  because  the  material  from  the 
details  of  which  we  should  construct  a  complete  image  is  too 
varied.     All  attempts  to  determine  the  main  characteristics 


§  18]   MENTAL  CHARACTERISTICS  OF  CRIMINALS   181 

fail  on  account  of  the  difficulty  of  exactly  defining  these  char- 
acteristics, and  on  account  of  the  danger  of  generalizing  from 
particularly  striking  individual  observations,  I  do  not  wish  to 
underestimate  the  value  of  the  careful  analysis  of  the  especially 
striking  phenomena  of  crime,  when  I  assert  that,  on  the  whole, 
we  can  learn  little  by  it  at  present.  Every  case  certainly  has  its 
peculiarity,  and  practice  in  observation  alone  makes  the  pains 
spent  on  it  worth  while.  But  we  must  not  forget  that  it  is 
not  the  murderers,  not  the  swindlers  on  a  larger  scale,  not 
the  assassins  of  people  in  high  places,  and  not  the  sexual 
murderers,  that  determine  the  criminal  physiognomy  of  our 
day,  but  the  thieves  and  pickpockets,  the  swindlers  and 
abusers  of  children,  the  tramps  and  prostitutes.  These  are 
the  criminals  that  first  demand  our  attention.  The  very 
fact  that  all  these  ofiFenses  are  so  frequent,  makes  it  possible 
slowly  and  cautiously  to  draw  conclusions  from  the  analysis 
of  individual  cases,  conclusions  that  may  lay  claim  to  univer- 
sal validity.  As  long  as  we  are  satisfied  to  examine  the  most 
external  phenomena,  to  ascertain  the  intellectual  capacity,  the 
error  that  consists  in  valuing  simultaneously  the  most  different 
kinds  of  criminality  is  not  so  great.  But  as  soon  as  we  go 
deeper  and  begin  to  study  the  passions,  the  moral  perceptions, 
the  degree  of  altruistic  thought,  remorse,  and  similar  qualities, 
we  must  restrict  ourselves  to  a  few  psychologically  similar 
crimes.  Otherwise  we  make  the  same  mistake  that  we  rightly 
object  to  in  the  works  of  some  of  the  Italian  school.  Let  us, 
however,  go  on  collecting  material  and  studying  a  few  par- 
ticularly interesting  cases.  The  day  will  come,  in  time,  when 
we  can  draw  our  conclusions  from  them.  But  we  have  not 
yet  reached  this  point. 

What  has  been  written  of  the  characteristics  of  criminals 
must  be  used  with  great  caution,  except  where  the  most 
elementary  qualities  are  concerned.    I  think  it  a  mistake  to 


182  THE  INDIVIDUAL  CAUSES  OF  CRIME        [§  18 

regard  most  of  the  experiences,  or  rather  general  impressions, 
that  have  been  collected,  as  typical  characteristics  of  crim- 
inals. It,  therefore,  seems  to  me  unjustifiable  to  speak  of 
them  in  general,  as  has  been  done,  as  brutal.  We  find  senti- 
mental inclinations  opposed  to  the  most  outspoken  brutality 
in  some  cases,  utter  deceitfulness  contrasted  with  naive 
frankness  in  others,  and,  what  is  still  more  striking,  we  find 
the  most  contradictory  qualities  united  in  the  same  individual. 
This  is  another  sign  of  the  instabihty  mentioned  above; 
carried  away  by  the  mood  of  the  moment,  the  same  individual 
is  sometimes  devotedly  unselfish,  sometimes  purely  egoistic. 

One  characteristic  must  be  spoken  of  especially:  the 
criminal's  own  judgment  of  his  act.  I  should  like  to  avoid  the 
word  "remorse,"  because  the  sorrow  that  is  often  displayed 
for  what  has  happened  frequently  does  not  correspond  to  an 
inner  feeling,  because  pretense,  in  order  to  stand  well,  is 
too  easily  bred,  according  to  the  tone  of  the  penal  institution. 
In  the  course  of  many  conversations  with  criminals  of  all 
kinds  and  all  classes,  I  have  most  frequently  been  struck  with 
the  superficiality  of  the  criminal's  comprehension  of  the 
gravity  of  his  crime.  Almost  never  did  he  grasp  the  repre- 
hensibleness  of  his  deed  with  sufficient  force  to  give  rise  to  the 
thought  whether  he  could  not  make  good  the  damage  he  had 
done.  As  a  rule,  his  understanding  was  directed  more  towards 
the  future  than  towards  the  past.  Thus,  he  might  firmly 
resolve  not  to  relapse  again,  but  would  scarcely  be  tortured 
by  thoughts  of  the  past,  beyond  regretting  that  he  would  be 
marked  as  having  served  a  sentence. 

The  conviction  that  the  present  penalty  is  the  last  that  they 
will  undergo  is  often  heard,  even  from  those  criminals  who  have 
always  been  only  temporarily  at  liberty;  on  the  other  hand, 
criminals  have  often  told  me  that  they  fear  it  will  not  be  long 
before  they  again  relapse  into  crime.     Very  rarely,  on  the 


§  18]  MENTAL  CHAEACTERISTICS  OF  CRIMINALS   183 

contrary,  and  only  in  those  intimate  moments  that  occur 
often  enough  between  the  physician  and  the  convict,  particu- 
larly when  the  latter  is  ill,  have  I  heard  a  man  express  the 
intention  to  resume  his  criminal  career  as  soon  as  his  sentence 
shall  have  expired.  I  do  not  mean  to  infer  that  this  idea  is 
remote  from  the  criminal's  mind;  the  contrary  is  proved  by 
the  fact  that,  even  within  the  prison  walls,  plans  are  often 
enough  discovered  for  the  carrying  out  of  new  thefts.  Never- 
theless, I  think  I  am  justified  in  concluding  that  the  criminal 
is  not  so  often  anxious  to  take  up  his  old  life  as  is  commonly 
supposed.  It  must  not  be  forgotten,  however,  that  I  speak 
mainly  of  convicts  in  prisons,  who  are  the  only  ones  that  I 
have  been  able  to  observe  more  carefully.  Undoubtedly, 
more  professional  thieves  and  swindlers  are  found  in  the  peni- 
tentiaries. The  groups  of  prisoners  in  the  centres  of  culture, 
too,  may  display  other  traits. 

Among  the  psychological  characteristics  of  the  criminal, 
Lombroso  also  includes  the  thieves'  slang  and  the  desire  to  be 
tattooed.  He  sees  in  these  tattooings  the  bridge  that  leads 
to  the  savages,  who  also  ornament  their  bodies  in  this  way. 
It  is  true  that  criminals  are  often  tattooed  with  all  kinds  of 
designs,  from  the  simplest  marks  to  the  most  intricate,  often, 
even,  really  pretty  representations  of  animals  and  plants,  in- 
cluding trade  and  vocational  signs,  and  human  figures  of  all 
kinds,  especially  those  of  acrobats,  contortionists,  etc.,  as 
well  as  names  and  verses  of  all  sorts.  But  this  ornamentation 
is  not  a  sign  of  the  criminal  world  nor  of  psychic  degeneration, 
but  merely  a  regrettable  custom  that  happens  to  be  very 
popular  in  Germany  at  present.  It  shows  local  differences 
very  distinctly.  Tattooing  is  extremely  common  among 
seamen,  and  not  rare,  but  with  local  differences,  among  factory 
workmen  and  soldiers.  A  man  who  knows  how  to  tattoo 
pretty  pictures  often  persuades  whole  regiments  to  let  him 


184  THE  INDIVIDUAL  CAUSES  OF  CRIME         [§18 

try  his  art.  Hence,  tattooings  are  altogether  valueless  as 
psychological  data. 

But  perhaps  we  might  infer  something  about  a  man  from 
the  subject  of  the  designs  he  bears.  This  is  certainly  the  case 
in  so  far  as  obscene  images  are  concerned.  WTiere  we  find 
tattooings  on  the  genital  parts,  unusually  vulgar  figures,  or 
those  that  suggest  perverse  sexual  inclinations,  we  know  that 
the  individual  who  bears  them  is  not  given  to  prudery.  A 
large  number  of  girls'  names,  too,  characterize  a  man  better 
than  a  "dissipated  appearance"  would.  Fortunately,  here  in 
Germany,  images  of  unmistakable  sexual  significance  are 
rare.  On  the  whole,  we  must  be  most  cautious  in  inferring 
criminal  peculiarities  from  such  marks. 

I  consider  the  proverbs  and  sayings  that  seem  to  indicate 
a  whole  tragedy  utterly  without  significance.  Lacassagne  ^ 
found,  for  instance,  the  mottoes:  "fils  du  malheur, "  "le 
passe  me  trompe,"  "I'avenir  m'epouvante,"  "le  present  me 
tourmente";  but,  among  700  individuals,  the  first  saying 
was  borne  by  eight,  the  last  by  three,  persons.  The  fact  that 
the  words  were  repeated  more  than  once  would  lead  me  to 
suspect  that  the  man  who  tattooed  them,  rather  than  the 
individual  who  bore  them,  was  responsible  for  the  choice, 
and  that  they  indicated,  at  most,  merely  an  inclination  to 
pose.  And  even  that  seems  to  me  to  be  assigning  too  great 
a  psychological  significance  to  them;  at  least,  several  times 
when  I  asked  a  man  why  he  had  chosen  certain  proverbs, 
such  as  "learn  to  suffer  without  complaint,"  or  "born  to  mis- 
fortune," I  was  told  that  the  professional  tattooist  had  recom- 
mended them  as  "particularly  beautiful." 

Thus,  tattooing  loses  much  of  its  significance  as  a  sign  of 
criminal  tendencies.  But,  because  of  its  practical  importance, 
I  must  not  omit  to  mention  the  fact  that  many  tattooed  per- 
^  Lacassagne,  "Les  tatouages,"  Lyon,  1887. 


§  18]   MENTAL  CHARACTERISTICS  OF  CREVIINALS   185 

sons  have  been  thus  adorned  while  in  prison  awaiting  trial, 
as  I  and  various  other  observers  were  able  to  ascertain.^ 

Thieves'  slang  was  formerly  an  extremely  characteristic 
mark  of  the  criminal.  Just  as  every  class,  every  profession, 
is  inclined  to  use  certain  expressions  with  secondary  meanings, 
to  coin  special,  peculiar  terms  —  think,  for  instance,  of  stu- 
dents' slang  —  so,  too,  it  is  in  the  criminal  world.  Formerly  a 
great  deal  of  attention  was  paid  to  the  different  variations  of 
this  thieves'  slang,  to  the  "Rotwelschen,"  Romany,  and  foreign 
language,  especially  Hebrew,  elements.^  Even  today  in  pro- 
fessional criminal  circles,  numbers  of  specific  expressions 
are  undoubtedly  current,  but  German  words  with  a  humorous 
tinge  are  rapidly  taking  the  place  of  foreign  terms,  especially 
among  tramps.  There  is  still  undoubtedly  some  difference 
in  the  terms  used  by  the  different  kinds  of  criminals,  and  this 
sometimes  makes  it  possible  for  the  man  of  experience  to 
distinguish  the  common  tramp  from  the  individual  who  makes 
a  business  of  swindling  peasants,  the  habitual  thief  from  the 
procurer.  But  I  do  not  think  that  Stumme  ^  is  right  in  calling 
thieves'  slang  a  secret  language;  it  is  rather  a  vocational 
language,  and  proves  nothing  but  that  the  person  who  speaks 
it  has  had  the  opportunity  of  learning  it;  at  most,  it  shows  with 
what  class  of  people  he  has  associated. 

The  study  of  thieves'  slang  is  still  justified  today.  But  not 
as  a  contribution  to  the  psychology  of  the  present-day  criminal 
world.    Ellis  *  probably  best  characterizes  the  situation  when 


1  Berger,  "Tatowierung  bei  Verbrechem"  (Vierteljahrsschrift  f iir  gericht- 
liche  Medizin,  XXXII,  p.  56). 

2  Ave-Lallemant,  "Das  deutsche  Gaimertum,"  Leipzig,  1862,  F.  A.  Brock- 
haus,  IV. 

^  Hans  Stumme,  "t)ber  die  deutsche  Gaunersprache  und  andere  Geheim- 
sprachen." 

*  Havclock  Ellis,  "Verbrecher  und  Verbrechen,"  Leipzig,  1895,  Georg  H. 
Wigand's  Verlag,  p.  183. 


186  THE  INDIVIDUAL  CAUSES  OF  CRIME        [§19 

he  says:   "The  modern  professional  criminal  avoids  it  just  as 
he  avoids  tattooing." 

On  the  whole,  no  traits  can  be  recognized  in  the  psychology 
of  the  criminal  that  are  characteristic  of  him,  nor  could  this  be 
expected  when  we  consider  the  general  way  in  which  the  ques- 
tion has  hitherto  been  treated.  We  might  rather  hope  for 
success  if  we  studied  certain  kinds  of  criminals  separately. 
I  believe  that  certain  criminal  specialists,  as,  for  example, 
the  "high  flyers,"  the  pickpockets,  certain  sexually  immoral 
criminals,  procurers,  prostitutes,  and  tramps  would  show 
special  peculiarities.  I  do  not  believe,  however,  that  these 
characteristics  will  ever  permit  us,  without  knowing  the 
person's  past,  to  infer  criminal  tendencies,  that  they  mean 
more  than  a  certain  menace  in  a  definite  direction. 

§  19.  Mental  Diseases  among  Criminals 

Our  penal  code  does  not  call  those  transgressions  of  the 
legal  order  that  are  committed  while  the  perpetrator  is  insane 
or  unconscious,  crimes  (§  51).  Official  statistics,  therefore, 
leave  us  entirely  in  the  lurch  when  we  consult  them  as  to 
the  frequency  of  those  crimes  which  could  not  be  punished 
because  of  mental  disease.  We  are  altogether  dependent  on 
the  scattered  records  of  alienists.  In  Dalldorf,  among  1706 
insane  persons,  Sander  ^  admitted  112  (6.6%)  directly  after 
they  had  come  in  conflict  with  the  criminal  law.  In  counting 
the  patients  in  the  Heidelberg  clinic  for  the  insane,  I  found 
much  higher  numbers.  On  three  days,  in  three  diflFerent  years, 
I  found,2  Qnce  37^^  once  43%,  once  57%,  of  the  male  patients 
who,  at  some  time  before  their  admission,  had  offended  seri- 

1  Sander  und  Richter,  "Die  Bezlehungen  zwischea  Geistesstonmg  iind 
Verbrechen,"  Berlin.  1886. 

2  "t)ber  gefahrliche  Geisteskranke "    (Allg.   Zeitschrift  fiir  Psychiatric, 
LVII.  p.  138). 


§  19]      MENTAL  DISEASES  AMONG  CRIMINALS         187 

ously  against  the  criminal  laws.  It  is  true  that  a  consider- 
able number  were  prisoners  awaiting  trial,  whose  mental 
condition  was  being  observed,  and  tramps,  so  that  my  figures 
are  probably  well  above  the  usual  average. 

A  description  of  the  crimes  that  are  committed  by  insane 
persons  does  not  lie  within  the  scope  of  this  book;  it  belongs 
in  the  text-books  on  judicial  psychiatry.^  Nevertheless,  stress 
must  be  laid  on  the  fact  that  the  mentally  diseased  are  a 
menace  to  legal  security,  as  the  newspapers  daily  show  us. 
The  immeasurable  misery  that  insane  persons  cause  can  only 
be  avoided  by  their  early  admission  into  sanataria  and  asy- 
lums. Hence,  every  attempt  to  require  the  establishment  of 
insanity  and  danger  to  the  community  at  large  by  some  kind 
of  legal  procedure  before  the  patient  can  be  sent  to  a  suit- 
able hospital,  is  superfluous,  if  not  injurious  to  the  insane 
person,  and  a  blow  in  the  face  of  public  safety. 

It  is  also  difficult  to  ascertain  the  number  of  the  insane  in 
penal  institutions.  Partly  because  there  is  no  sharp  dividing 
line  between  health  and  disease.  This  is  true,  principally, 
in  the  large  sphere  of  congenital  and  acquired  feeble-minded- 
ness.  The  alienist  who,  in  daily  contact  with  such  patients, 
has  the  opportunity  of  observing  carefully  the  phenomena  of 
idiocy  and  imbecility  will  include  among  the  mentally  dis- 
eased many  feeble-minded  persons  that  the  layman,  the  prison 
warden,  and  the  judge  consider  normal.  It  is  difficult  to  con- 
vince either  of  them  of  the  contrary  opinion,  because  many 
feeble-minded  persons  conduct  themselves  blamelessly  within 
the  prison  walls,  where  the  system  of  the  institution  and  their 
work  relieves  them  of  the  task  of  thought,  and  where  the 
temptations  of  the  outside  world  are  lacking. 

'  Hoche,  "Handbuch  der  gerichtlichen  Paychiatrie,"  Hirschwald,  Berlin, 
1901;  Cramer,  "  Gerichtliche  Psychiatric,"  3rd  ed.,  Gustav  Gischer,  Jena,  1903; 
Delbriick,  "Gerichtliche  Psychopathologie,"  Ambr.  Barth,  Leipzig,  1897. 


188  THE  INDIVIDUAL  CAUSES  OF  CRIME        [§19 

Not  all  the  feeble-minded,  however,  are  numbered  among 
the  docile,  quiet  members  of  the  prisons.  Sometimes  they 
come  to  grief  on  the  demands  that  are  made  of  their  power  of 
comprehension;  then  their  foolish  obstinacy  is  aroused,  their 
emotional  excitability  is  increased,  and  this  leads  to  the  most 
unpleasant  scenes,  to  senseless  raving  and  screaming,  to 
abusive  language,  and  assaults  on  attendants. 

Still  more  frequent  are  scenes  with  epileptics  in  which  it 
seems  as  if  the  fury  that  has  been  accumulating  for  a  long  time 
and  has  been  restrained  with  diflBculty,  suddenly  breaks  out. 
The  conception  of  this  disease  includes  periodicity,  the  change 
from  completely  normal  behavior  —  assuming  that  epileptic 
idiocy  has  not  already  occurred  —  to  pathological  disturb- 
ances of  the  consciousness.  On  this  soil,  especially,  the  very 
slightest  cause  is  often  sufficient  to  kindle  an  irritability  that 
is  expressed  in  wild  raving.  The  contrast  between  the  per- 
son's usual  quiet  demeanor  and  these  sudden  outbreaks  makes 
it  very  difficult  for  the  layman  to  recognize  their  pathological 
origin.  They  are  injurious,  not  only  to  the  patient,  who  is, 
of  course,  subjected  to  the  most  severe  disciplinary  measures, 
but  also  to  the  discipline  of  the  institution. 

In  the  interests  of  the  execution  of  the  penalty,  as  well  as 
from  a  medical  standpoint,  it  is  imperative  that  these  and  other 
pathological  conditions  should  be  immediately  recognized 
for  what  they  are,  that  they  may  be  prevented  in  the  future. 
Many  physicians,  unfortunately,  are  hampered  by  a  lack  of 
psychiatrical  knowledge.  In  addition,  the  time  that  is  at  the 
disposal  of  most  physicians  in  which  to  make  their  own 
observations  is  generally  insufficient,  the  reports  of  the  offi- 
cials in  the  institution  are  incomplete  and  frequently  influenced 
by  the  unfortunate  tendency  to  regard  many  symptoms  as 
simulated.  All  this  makes  it  difficult  to  see  the  case  clearly 
and  dispassionately,  and  thus  it  happens  that  what  for  years 


§  19]      MENTAL  DISEASES  AMONG  CRIMINALS        189 

has  been  considered  due  to  malice  and  criminal  qualities 
sometimes  is  later  recognized  as  the  expression  of  a  psychic 
disease. 

The  difficulties  of  ascertaining  how  many  insane  persons 
are  serving  sentences  are  reflected  again  in  the  variation  of  the 
figures  that  represent  the  diflFerent  institutions  in  the  statis- 
tics of  penal  institutions  and  prisons  published  by  the  Prus- 
sian Ministry  of  the  Interior.  As  a  whole  average  for  the 
last  three  years,  I  have  reckoned,  from  the  figures  for  peni- 
tentiaries, 1%,  from  those  for  prisons,  0.24%,  insane  persons. 

In  itself,  this  low  percentage  is  not  surprising,  although  in 
the  prisons,  at  least,  the  numbers  do  not  reach  4  to  1000,  which, 
according  to  the  general  opinion,  is  the  proportion  of  the  in- 
sane to  the  whole  population.  According  to  the  laws,  the 
gates  of  penal  institutions  should,  indeed,  be  closed  to  the 
insane;  thus  there  would  remain  only  those  who  become 
insane  while  they  are  serving  their  sentences.  In  reality, 
however,  the  situation  is  very  different. 

Those  persons  who  have  committed  a  crime  during  or  in 
consequence  of  their  mental  disease  have  been  classified  as 
"criminal  insane."  Krohne  ^  has  taken  exception  to  this  term 
because  it  "tears  away  the  foundations  of  all  penal  justice, 
which  is  expressed,  both  in  the  rule  of  the  Sachsenspiegel : 
'the  real  fool  and  the  senseless  man  shall  not  be  judged,'  and 
in  the  Code  Penal:  'II  n'y  a  ni  crime  ni  delit  en  cas  de 
demence.'"  Every  psychiatrist  certainly  represents  this 
point  of  view,  but,  unfortunately,  not  every  judge.  As  a 
matter  of  fact,  we  find  real  fools  and  senseless  men  enough 
in  all  penal  institutions,  some  of  whom  have  been  sentenced 
even  in  spite  of  an  alienist's  report. 

Hence,  the  term  "criminal  insane"  must  only  be  understood 
in  the  sense  of  insane  persons  who  have  committed  some  act 
'  Krohne,  loc.  cit.  p.  273. 


190  THE  INDIVIDUAL  CAUSES  OF  CRIME         [§  19 

that  is  punishable  according  to  law.  It  is  not  easy  to  ascer- 
tain afterwards  how  large  their  number  is  among  the  convicted; 
at  least,  the  judgment  is  not  so  reliable  later,  as  when  the  effort 
is  made  to  separate  them  as  soon  as  they  are  committed. 
Yet  I  should  mention  that,  of  all  the  insane  women  in  the 
Hubertusburg  institution,  Naecke  ^  reckons  that  from  20% 
to  25%  were  mentally  diseased  when  sentenced.  Scheven  ^ 
found  that,  of  114  criminally  insane  persons  in  Mecklenburg 
who  were  admitted  to  the  insane  asylum,  either  from  penal 
institutions  while  awaiting  trial,  or  while  at  liberty,  49  had 
been  unjustly  punished.  Also,  among  the  criminals  who, 
while  serving  their  sentences,  were  transferred  to  the  hospital 
for  the  insane  because  of  a  psychosis,  that  is,  among  the  so- 
called  "insane  criminals,"  there  were  probably  many  who  did 
not  become  insane  during  imprisonment,  but  whose  disease 
was  recognized  then;  accordingly,  Scheven  estimates  the 
percentage  of  insane  persons  who  were  convicted  in  spite  of 
their  condition  to  be  about  34%  of  all  the  insane  persons  who 
come  into  conflict  with  the  criminal  code. 

These  miscarriages  of  justice  are  distributed  over  many 
years;  nevertheless,  the  proportion  of  such  errors  is  not  in- 
considerable. I  can  corroborate  this  by  the  result  of  my  own 
investigation.^  For  more  than  three  years  I  have  examined 
systematically  and  indiscriminately  into  the  mental  condition 
of  every  criminal  committed  to  the  penal  prison  in  Halle 
for  an  offense  against  sexual  morality,  after  having  learned 
as  much  as  possible  of  the  person's  past  from  the  documents 
and  records  of  the  local  authorities.    Of  the  200  such  criminals 

1  Naecke,  "Verbrechen  und  Wahnsinn  beim  Weibe"  (Allg.  Zeitschrift  fiir 
Psychiatric,  XLIX). 

*  Scheven,  "  Geistesstorung  und  Verbrechen  in  Mecklenburg-Schwerin" 
(Arch.  Krim.  Anthr.,  IV,  266). 

'  Aschaffenburg,  "Zur  Psychologic  der  Sittlichkeitsverbrecher"  (MSchr. 
Krim.  Psych.  II,  399). 


§  19]      MENTAL  DISEASES  AMONG   CRIMINALS         191 

that  I  examined,  only  45  were  entirely  normal,  and,  even 
of  these,  alcohol  had  been  the  provocative  agent  of  the  crim- 
inal action  in  twelve  cases.  Ten  suffered  from  senile  decay 
(all  sentenced  for  indecent  assaults  on  children),  2  from 
dementia  due  to  calcification  of  the  arteries,  4  from  other 
kinds  of  psychoses,  1  from  dipsomania,  1  from  severe 
hysteria.  Fourteen  were  idiots;  3  feeble-minded  persons 
and  9  epileptics  had  to  be  counted  irresponsible,  because 
their  diseases  were  combined  with  drunkenness  or  other 
detrimental  momenta.  Thus  44,  nearly  one-quarter,  un- 
questionably belonged  in  an  asylum  for  the  insane,  for  idiots, 
or  for  the  aged,  instead  of  in  prison.  But  even  the  others, 
who  were  not  considered  irresponsible,  showed  more  or  less 
serious  psychic  anomalies,  especially  feeble-mindedness,  epi- 
lepsy, chronic  alcoholism,  etc.,  so  that  only  45  could  be 
pronounced  unquestionably  normal.  There  were  only  99 
whom  I  should  have  reported  to  be  entirely  responsible, 
or  very  slightly  affected  in  their  responsibility,  if  I  had  been 
called  upon  to  examine  them  as  an  expert. 

Fritz  Leppmann's  ^  examination  of  the  inmates  of  the  peni- 
tentiary in  Moabit  produced  a  similar  result.  He  found  only 
30  normal  men  among  90  convicted  of  rape  or  of  assaulting 
children,  and  in  Moabit  there  are  no  men  over  40  com- 
mitted for  offenses  against  chastity,  above  all  no  aged  men, 
who  may  all  be  considered  psychically  defective,  even  if  not 
entirely  irresponsible. 

Among  the  beggars  and  tramps  that  he  examined,  Bon- 
hoffer  ^  found  12%  who  were  insane  to  such  a  degree  that 
§  51  of  the  Penal  Code  would  apply  to  them.  "Much  larger, 
as  would  naturally  follow,  was  the  number  of  those  who, 

'  Fritz  Leppmann,  "Die  Sittlichkeitsverbrecher,  eine  kriminal-psycholo- 
gische  Studie"  (Vierteljahrsschrift  f.  gerichtl.  Medizin,  N.  Folge,  XXIX,  2). 
^  Bonhoffer,  loc.  cit.  p.  56. 


192  THE  INDIVIDUAL  CAUSES  OF  CRIME        [§19 

from  a  psychiatrical  point  of  view,  would  be  classified  as 
having  'decreased  responsibility.'  If  we  should  include  all 
those  with  slighter  acquired  or  congenital  psychic  defects, 
all  imbeciles,  epileptics,  inebriates,  senile  individuals,  and 
those  that  were  pathologically  irritable,  the  number  would 
exceed  75%  of  the  whole." 

The  mental  condition  of  other  criminals  is  probably  not 
as  bad  as  that  of  tramps  and  criminals  against  sexual  morality. 
But  from  the  foregoing  it  may  well  be  concluded  that  the 
alienist  should  be  more  frequently  consulted,  especially 
where  offenses  against  chastity  are  concerned,  and  his  report 
taken  more  into  account.  If  this  were  done,  many  of  the 
cases  of  Ulness  in  penal  institutions  would  disappear. 

A  small  number  of  the  psychoses  that  break  out  in  prison 
is  due  to  the  alcoholism  that  is  so  common  among  criminals, 
a  number  to  epilepsy.  Some  delinquents,  however,  show  the 
first  signs  of  disease  during  their  imprisonment,  and  the  most 
careful  examination  reveals  nothing  that  would  justify  us 
in  assuming  that  the  first  symptoms  were  present  before  the 
criminal  act  was  committed.  The  peculiar  symptoms  of  this 
psychosis,  which  is  generally  characterized  by  auditory  hallu- 
cinations while  the  mind  is  otherwise  quite  rational,  has  led 
to  the  recognition  of  a  special  form  of  disease,  "prison  de- 
lirium. " 

This  is  of  importance,  inasmuch  as  the  frequency  of  this 
condition  was  often  attributed  to  the  cell  system,  solitary 
confinement,  and  isolation,  and  a  dangerous  enemy  to  this 
so  beneficial  institution  of  our  penal  system  was  thus  created. 
Subsequent  experiences,  however,  have  proven  that  this  fear, 
if  not  entirely  groundless,  was  at  least  of  small  significance. 
Riidin  ^  found  that,  among  94  diseased  prisoners,  "  confine- 

1  Riidin,  "Die  klinischen  Formen  der  Gef angnispsychosen "  (AUg. 
Zeitschrift  f.  Psychiatric,  LVIII.   497). 


§  19]        MENTAL  DISEASES  AMONG  CRIMINALS       193 

ment  symptoms"  appeared  in  28  cases.  Of  these,  22  were 
psychoses  of  which  the  symptoms  had  merely  been  given  a 
peculiar  tinge  by  imprisonment,  and  the  other  6  too  were 
probably  identical  with  diseases  that  also  occur  outside 
prisons.  The  symptoms  appeared  18  times  in  solitary  con- 
finement, 10  times  in  common  confinement.  One  thing  may 
be  said  with  certainty:  in  general,  the  diseases  that  occur 
during  imprisonment  are  identical  with  those  that  occur  in 
persons  who  are  at  liberty,  and  all  that  can  be  attributed  to 
confinement  is  the  predominance  of  certain  symptoms.  In 
any  case,  "convict's  insanity,"  if  it  exists  at  all  as  an  in- 
dependent psychosis,  is  extremely  rare. 

My  own  experiences  lead  me  to  agree  entirely  with  this 
view  of  Riidin's.  The  idea  that  solitariaess  awakens  in  the 
criminal  feelings  of  remorse,  that  the  shades  of  his  victims 
surround  him  threateningly,  that  despair  overwhelms  him, 
till  he  is  no  longer  able  to  think  clearly  and  collapses  under 
the  torments  of  his  conscience  —  all  these  fine  ideas  cannot 
stand  in  the  face  of  sober  observation.  Prison  or  penitentiary 
may,  indeed,  hasten  the  criminal's  lapse  into  insanity  occa- 
sionally, —  in  rare  cases,  perhaps,  even  cause  it;  but,  as  a 
rule,  the  penal  institution  merely  happens  to  be  the  dwelling, 
at  the  moment,  of  the  person  in  whom  the  disease  breaks  out. 
When  we  consider  that  most  convicts  are  encumbered  by 
heredity  and  have  not  lived  in  accordance  with  the  laws  of 
health,  we  cannot  wonder  that  they  often  develop  mental 
disease. 

In  the  penitentiary  of  Waldheim,  Knecht  ^  found  that  7% 
of  the  individuals  were  so  burdened  with  psychic  defects, 
or  so  disposed  to  psychoses,  that  they  developed  mental 
disease  either  before  or  during  their  imprisonment.     Baer  ^ 

'  Loc.  cit.  p.  595. 

^  "Lehrbuch  der  Gefangniskunde,"  Ferdinand  Enke,  1889,  p.  260. 


194  THE  INDIVIDUAL  CAUSES  OF  CRIME        [§19 

found  a  somewhat  lower  percentage:  of  every  100  prisoners, 
at  least  5  had  mental  defects,  and  of  these,  2  had  pronounced 
mental  diseases. 

As  I  have  mentioned,  on  one  day,  of  the  405  prisoners  with 
sentences  over  six  months  that  I  examined,  67  were  distinctly 
sub-normal.  Of  these,  8  were  feeble-minded  to  such  a  degree 
that  they  absolutely  deserved  the  protection  of  §  51  of  the 
Penal  Code.  Eleven  men  suffered  from  the  most  various  forms 
of  mental  disease,  some  of  them  from  senile  insanity.  Besides 
these  19,  I  found  hysteria  in  1  case,  epilepsy  in  10,  and 
nervous  disturbances  of  a  serious  nature  in  9  others. 

From  my  own  experience  I  must  add  that  even  grave 
psychoses  often  for  a  long  time  elude  the  eye  of  even  a  prac- 
ticed observer,  unless  they  afiFect  the  person's  outward  de- 
meanor. The  longer  and  the  more  frequently  the  physician 
sees  such  patients,  the  more  certain,  of  course,  will  his  diag- 
nosis be.  Hence,  the  observations  of  convicts  that  have  been 
made  during  long  years  in  the  penitentiary  are  the  most  valu- 
able. Most  significant  is  Krohne's  ^  judgment,  for  he  cannot 
be  reproached,  as  alienists  so  often  are,  with  being  prejudiced 
in  favor  of  insane  persons  by  his  profession.  He  says:  "Ac- 
cording to  my  careful  investigations,  made  with  the  co-opera- 
tion of  the  institution's  physician.  Dr.  Werner,  and  the  two 
specialists.  Dr.  Richter  and  Dr.  Langreuter,  both  of  whom 
are  certainly  experienced  in  this  field,  the  number  of  the  men- 
tally deficient  in  the  penal  institution  Moabit  amounted  on 
an  average  to  10%,  and  yet  the  inmates  of  this  institution  are 
all  penitentiary  prisoners  with  sentences  ranging  up  to 
4  years,  those  under  25  having  been  committed,  whether  or 
not  there  was  any  former  conviction  against  them,  and  those 
over  that  age  and  under  40  being  men  who  have  not  already 
repeatedly   served   prison  or  penitentiary   sentences.     Thus 

^  "Lehrbuch  der  Gefangniskunde,"  Ferdinand  Enke,  1889,  p.  260. 


§  19]      MENTAL  DISEASES  AMONG  CRIMINALS         195 

the  institution  does  not  harbor  any  completely  depraved 
habitual  criminals,  nor  any  aged  and  weak-minded  ones." 

The  suspicion  is  involuntarily  forced  upon  the  layman 
that  a  large  number  of  these  apparent  cases  of  illness  may  be 
boldly  simulated.  In  reply,  one  thing  may  be  definitely  as- 
serted, the  simulation  of  psychoses  is  as  difficult  as  it  is  rare. 
Attempts  to  "play  the  raving  madman"  do,  indeed,  occur 
occasionally,  especially  in  large  cities  like  Berlin,  where  the 
opportunity  to  study  the  subject  is  easier  to  find.  But  all 
such  attempts  are  strangled  at  once  if  the  prisoner  knows 
that  he  is  confronted  by  a  specialist;  usually  a  quiet  serious 
demeanor  suffices  to  cause  the  symptoms  to  disappear. 

Then  it  is  that  the  difficult  task  still  lies  before  the  alienist 
of  finding  out  whether  the  individual  is  not  really  insane  after 
all,  for  experience  teaches  that  simulation  is  generally  tried 
by  insane  persons.  Hence,  I  will  only  mention  my  own  ex- 
periences. Among  the  unusually  large  number  of  prisoners 
held  for  examination  whom  I  have  seen  in  the  course  of  my 
psychiatrical  practice,  there  were  only  4,  if  I  except  some 
acting  that  lasted  for  a  day  or  two,  who  showed  symptoms 
for  a  lengthy  period  which  we  thought  were  simulated.  Of 
these,  2  later  proved  to  be  incurably  insane,  and  I  do  not 
hesitate  to  pronounce  our  diagnosis  as  erroneous  in  at  least 
one  of  the  other  eases,  although  perhaps  it  was  un- 
avoidable. 

In  two  other  cases,  besides  the  simulated  symptoms, 
there  was  pronounced  feeble-mindedness,  although  in  neither 
was  it  of  such  a  high  degree  that  I  could  apply  §  51  of  the 
Penal  Code.  Quite  striking  are  Longard's  remarks  (on  moral 
insanity,  "Archiv  fiir  Psychiatric,"  XLIV,  No.  1),  in  which 
he  says  that  in  no  case  where,  together  with  the  physicians  of 
public  insane  asylums  for  instance,  he  diagnosed  simulation, 
was  he  successful.     In  every  case,  even  in  one  in  which  the 


196  THE   INDIVIDUAL  CAUSES  OF  CRIME         [§  19 

criminal  himself  confessed  that  he  was  simulating,  the  individ- 
uals proved  to  be  insane  after  all. 

The  fact  that  I  have  met  with  no  simulant  who  was  un- 
mistakably normal,  and  with  very  few  in  any  case,  is  cer- 
tainly due  to  chance,  for  other  psychiatrists  of  cautious  and 
experienced  judgment  have  occasionally  found  simulants;^ 
nevertheless,  cases  of  pure  simulation  without  any  patho- 
logical basis  are  isolated  exceptions. 

Brief  attacks  of  pretending  to  be  insane,  particularly  to 
be  imbecile,  are  more  frequent,  both  before  the  examining 
judge  and  while  serving  sentence.  But  they  are  rarely  long 
or  consistently  carried  out.  The  criminal  judge  and  the 
prison  official  ought  gradually  to  recognize  this.  If  an  un- 
fortunate prejudice  did  not  exist,  and  if,  whenever  a  striking 
symptom  appears,  the  suspicion  did  not  arise  that  it  is  merely 
simulated,  examination  by  a  specialist  would  more  often  be 
demanded,  and  thus  many  an  individual  who,  according  to 
our  laws,  must  be  regarded  as  innocent,  would  be  delivered 
from  the  prison  and  the  penitentiary.  The  officials  in  penal 
institutions,  too,  who  are  inclined  by  their  daily  contact 
with  criminals  to  think  the  worst  of  prisoners,  should  be  more 
influenced  by  the  general  experience  of  specialists.  If  they 
were,  persons  who  are  psychically  unbalanced  would  not  so 
often  have  to  taste  the  extreme  severity  of  disciplinary  pun- 
ishments, and  all  possible  methods  would  not  be  employed 
to  break  the  obstinacy  of  a  supposed  simulant.  Such  measures 
are  all  in  vain,  for  they  are  directed  against  a  symptom  that 
does  not  exist,  against  simulation,  and  because  it  is  attempted 
to  influence  a  man  who  cannot  be  influenced  because  he  is 
insane.  This  cannot  be  remedied  until  the  distrust  of  the 
physician  disappears,  and  the  institution  officials  are  familiar 
with  at  least  the  first  principles  of  psychiatry.     The  earliest 

*  Bresler,  "Die  Simulation  von  Geistesstorung  und  Epilepsie,"  Halle,  1904. 


§  19]      MENTAL  DISEASES  AMONG  CRIMINALS        197 

possible  recognition  of  the  prisoner's  condition  will  then  spare 
him  unnecessary  punishment,  and  the  discipline  and  order 
of  the  institution  will  only  gain,  because  the  patient  will 
soon  be  removed  from  his  unsuitable  surroundings. 

The  enormous  frequency  among  criminals  of  mental 
disturbances  and  aberrations  in  the  widest  sense  of  the  word 
suggests  the  question,  what  relations  exist  between  the  ab- 
normal mode  of  thought  of  the  insane  and  that  of  the  crim- 
inal? Past  experiences  forbid  us  to  draw  a  sharp  dividing  line  , 
between  the  two.  I  will  only  mention  as  the  example  of  a 
psychosis,  softening  of  the  brain,  the  symptoms  of  which, 
known  in  part  also  to  the  layman,  most  easily  admit  of  the 
proof  that  we  are  concerned  with  a  serious  and  incurable  dis- 
ease. Clinically,  we  have  known  this  disease  only  since  1826. 
How  many  diseased  persons  before  that  must  have  been  mis- 
understood and,  with  their  inclination  to  criminal  actions, 
have  been  delivered  over  to  the  criminal  judge!  What  we 
have  experienced  in  regard  to  softening  of  the  brain  and  some 
other  diseases  may  be  repeated  at  any  time.  Certain  symptoms 
may  combine  in  a  certain  aspect  of  disease  that  is  as  yet  un- 
known to  us,  and  thus  the  boundary  of  mental  health  would 
again  be  removed. 

A  sharp  separation  of  the  mentally  normal  from  the  psy- 
chically diseased  criminals  also  hinders  the  knowledge  of 
what  are  called  "borderland  conditions."  ^  One  flank  of  the 
whole  army  of  the  feeble-minded,  the  hysterical,  the  epileptic, 
of  those  who  suffer  from  persistent  hallucinations  and  from 
neurasthenia,  of  those  who  are  injured  by  the  habitual  abuse 
of  alcohol  or  morphine,  stands  beyond  the  boundary  of  crim- 
inal responsibility;  but  where  only  the  very  slightest  degree 
exists,  the  person  must  be  pronounced  responsible.  I  shall 
return  to  the  importance  of  these  "borderland  states"  in 
'  Hoche,  loc.  cit.  p.  533. 


19S  THE   INDIVIDIWL  CAUSES  OF   CRBIE         [§20 

criminal  prosecution;    here  their  significance  is  merely  that 

of   a   bridge   from   the   dangerous   insane   to   the   dangerous 
criminal. 

Both,  criminality  and  mental  disease,  are  plants  that  draw 
their  nourishment  from  the  same  soil,  physical  and  mental 
degeneration.  The  fact  that  this  soil  is  not  able  to  produce 
better  fruit  must  be  attributed  to  intemperance  and  wretched- 
ness, to  the  marriage  of  mentally  deficient  persons,  iu  short, 
to  unfortunate  social  conditions.  VThy  it  is  that  one  child 
of  a  drunkard  will  be  epileptic,  idiotic,  or  insane,  and  another, 
with  no  discernible  psychic  defect,  but  irritable  and  unstable, 
will  become  a  criminal;  why  one  of  a  depraved  family's 
badly  brought  up  children  will  turn  drunkard  and  end  in  the 
insane  asylum,  while  another  finds  his  way  to  prison,  we  do 
not  and  never  shall  know. 

S  20.  The  Classification  of  Criminals 

In  spite  of  some  alterations  in  his  classification  of  crim- 
inals, Lombroso  ^  continued  to  maintain  that  perhaps  one- 
third  of  all  criminals  represented  a  special  type  distinguished 
by  common  physical  and  mental  qualities.  He  considered 
the  proof  of  these  physical  and  psychic  anomahes  of  particu- 
larly great  value,  because  to  him  they  were  signs  that  the 
"delinquente  nato"  was  an  ata\'istic  step  in  the  development 
of  mankind.  This  assertion  is,  at  present  certainly,  entirely 
unfounded.  The  dividing  line  between  the  really  atavistic 
formations  and  the  anomahes  that  arise  in  earhest  youth, 
or  during  foetal  development  in  consequence  of  pathological 
processes,  is  just  as  difficult  to  draw  as  that  between  the 
anomalies  themselves  and  the  variations  that  still  lie  within 

1  Lombroso,  "L'anthropologie  criminelle  et  ses  recents  progres,"  Paris, 
1S96,  Felix  Alcan,  p.  92:  "Ursacben  und  Bekampfung  des  Verbrechens,"  190i, 
p.  326. 


§20]  CLASSIFICATION  OF  CRIMINALS  199 

the  margin  of  normality.  The  most  able  judges  in  this 
sphere,  the  anatomists,  and  among  these,  above  all,  SernoflF, 
reject  the  atavistic  significance  of  most  of  the  variations 
found  by  Lombroso  and  his  followers. 

Similarity  in  anatomy  and  mental  qualities  to  savages  and 
the  peoples  of  former  ages  has  been  used  to  support  the  theory 
that  the  criminal  signifies  a  relapse  which  may  lead  "beyond 
the  savage,  to  the  animal  itself."  This  hypothesis  stands  on 
very  uncertain  feet;  the  life  and  doings  of  primitive  peoples 
are  often  very  different  from  the  rough  and  unchecked 
brutality,  cruelty,  and  other  characteristics  which  are  ad- 
vanced as  the  basis  of  the  likeness  between  savages  and 
criminals. 

Entirely  mistaken  is  the  comparison  between  crime  and 
epilepsy.  The  "epileptic  background,  from  which  the  clinical 
and  anatomical  picture  of  the  morally  insane  person  and  of 
the  born  criminal  is  projected,  acts  as  a  medium  for  the  com- 
prehension of  the  directness,  the  periodicity,  and  the  para- 
doxical contrast  of  their  symptoms,  which,  without  doubt, 
are  their  most  prominent  characteristics."  This  view  is  based 
on  an  entire  misunderstanding  of  epilepsy.  A  criminal 
never  shows  epileptic  characteristics  unless  he  is  suffering 
from  this  disease.  This  is  common  enough  and  is  easily 
explicable,  if  we  know  the  frequency  of  epilepsy  among 
drunkards  and  the  children  of  drunkards.  But  the  only 
thing  that  crime  has  in  common  with  epilepsy  is  the  common 
soil  of  degeneration. 

All  of  Lombroso 's  attempts  to  separate  the  born  criminal 
from  the  normal  man  by  bringing  him  into  connection, 
partly  with  atavistic,  partly  with  pathological,  states,  have 
come  to  grief;  and  so  has  the  endeavor  to  characterize  the 
criminal  "clinically  and  anatomically."  We  must  never  infer 
criminal  tendencies  from  the  existence  of  all  kinds  of  stigmata 


200  THE  INDIVIDUAL  CAUSES  OF  CRIME         [§20 

of  degeneration,  just  as  the  fact  that  an  individual  is  de- 
scended from  insane  parents  and  bears  numerous  stigmata 
does  not  justify  us  in  assuming  that  we  have  to  do  with  a 
psychically  diseased  person. 

The  decided  rejection  of  any  pathognomonic  value  of  crim- 
inal anomalies,  in  which  almost  all  German  scientists  without 
exception  are  agreed,  has  aided  in  refuting  two  problems,^ 
which  must  be  kept  quite  separate,  namely : 

1.  Whether  born  criminals  exist. 

2.  Whether  this  congenital  moral  abnormality  expresses 
itself  in  tangible,  morphological  signs. 

Sommer  aflSrms  the  first  question  "unconditionally." 
Kirn,2  ^qq^  o^nd  Baer  ^  are  obliged  to  admit,  in  the  same  breath 
in  which  they  speak  of  the  theory  of  the  born  criminal  as 
refuted,  that  at  least  we  are  concerned  with  inferior  human 
material.  "In  any  case,  so  much  is  certain,  that  the  average 
habitual  criminal  is  below  the  average  mental  plane  of  human- 
ity in  general."  * 

The  analysis  of  what  we  have  ascertained  concerning  the 
body  and  mind  of  the  criminal  leads  to  the  same  conclusions. 
Intellectually  and  physically  they  fall  below  the  average. 
This  does  not  apply  to  the  individual,  but  to  criminals  as  a 
class,  just  as  we  may  say  of  a  race  that  it  stands  on  a  low 
plane  without  intending  to  intimate  that  it  lacks  physically 
strong  and  intellectually  eminent  men. 

As  we  have  seen  above  (p.  124),  inferiority  is  the  result  of 
descent  and  training.  Thus,  the  roots  of  the  evil  are  trans- 
ferred to  the  social  sphere.     The  great  advantage  of  this  is, 

1  Sommer,  "Die  Kriminalpsychologie "  (Allg.  Zeitschr.  f.  Psych.  LI,  782; 
"Kriminalpsychologie,"  Leipzig,  1904,  p.  311). 

^  Kirn,  "tJber  den  gegenwartigen  Stand  der  Kriminal- Anthropologic " 
(AUg.  Zeitschr.  f.  Psych.,  L.  711). 

*  Baer,  "Der  Verbrecher,"  p.  245. 

*  Kirn,  "  Geistesstornng  und  Verbrechen.    Illenauer  Festschrift,"  p.  98. 


§20]  CLASSIFICATION  OF  CRIMINALS  201 

that  we  can  confront  the  whole  phenomenon  with  more 
courage,  because  we  then  reahze  how  it  must  be  combated. 
But  Bleuler  ^  is  not  wrong  when  he  says:  "Such  influences 
of  environment  do  not  speak  against  Lombroso,  they  justify 
him,  but  go  even  a  Uttle  beyond  him  by  discovering  the 
causes  of  the  'reo  nato. '"  This  is  true  in  so  far  as  we  try  to 
ascertain  whence  the  average  inferiority  comes.  But  we  do 
not  thereby  acknowledge  the  existence  of  the  "born  criminal," 
whose  nature  forces  him  with  fatahstic  necessity  into  a  career 
of  crime. 

The  social  evils,  wretchedness  and  poverty,  drunkenness 
and  disease,  produce  a  generation  of  men  who  are  not  equal 
to  the  storms  of  life;  they  are  socially  useless,  in  the  same  sense 
that  those  who  are  rejected,  when  recruits  are  examined  for 
the  army,  are  physically  unfit.  The  State  requires  a  minimum 
height  and  chest  measurement.  Some  of  those  who  are  re- 
jected as  unfit  would  endure  the  exertions  incidental  to  service 
perfectly  well,  just  as  some  of  the  tall  fellows  with  adequate 
chest  measurements,  collapse.  The  rejection  of  the  short  and 
narrow  is  merely  an  expression  of  the  experience  that  the 
health  of  those  below  a  certain  limit  is  especially  apt  to  suffer. 

So,  too,  for  us  the  establishment  of  a  low  intelligence,  of 
physical  and  mental  inferiority,  is  merely  a  sign  of  the  lack 
of  the  power  to  resist  social  circumstances,  a  signal  that  warns 
us  to  be  cautious  and  not  to  ask  too  much  of  these  socially 
unfit.  If  we  could  tear  up  all  these  people  out  of  the  foul  soil 
in  which  they  are  rooted,  if  we  could  strengthen  them  physi- 
cally and  steel  them  by  education,  if,  above  all,  we  could  pro- 
tect them  from  the  dangers  of  life,  we  should  be  able  to  save 
most  of  them  from  social  ruin. 

But  that  would  be  Utopia.  Life  takes  its  course  and  grinds 
him  who  cannot  keep  up.     As  the  struggle  for  existence  is 

^  BleulcT,  "Der  geborene  Verbrecher,"  Munich,  1896,  J.  F.  Lehmaan,  p.  32. 


202  THE  INDIVIDUAL  CAUSES  OF  CRIME        [§20 

going  on  at  present,  as  national  customs  force  everyone  into 
the  yoke  of  "doing  likewise,"  we  are  obliged  thus  to  judge  the 
dangers  to  which  we  are  all  exposed.  They  are  greater  than 
the  power  of  resistance  of  all  these  inferior  persons;  where 
the  strong  swimmer  breasts  and  surmounts  the  surf,  the  weak 
one  perishes.  And  those  that  perish  are  many.  The  Prussian 
statistics  of  penal  institutions  contain  a  highly  noteworthy 
table  on  this  subject.^ 

All  those  penitentiary  prisoners  who  had  served  at  least 
three  sentences  (penitentiary,  prison,  or  house  of  correction), 
of  which  one  or  more  amounted  to  six  months  and  over,  were 
counted  on  the  first  of  October,  1894,  and  to  these  were  added 
also  those  who  were  committed  between  then  and  March  31, 
1897.  A  conference  of  oflficials  reported  what  in  their  judgment 
was  to  be  expected  of  each  of  these  15,539  men  and  2510 
women  in  the  future. 

The  result  is  truly  horrifying.  Social  uselessness  was  in 
the  highest  degree  probable  in  92.4%  of  the  women,  94.8% 
of  the  men,  in  the  first  period;  in  98%  of  the  women,  and 
96.4%  of  the  men,  in  the  second  period.  The  predominant 
cause  is  incorrigibility.  But  wherein  can  this  incorrigibility 
consist,  if  we  do  not  include  those  with  physical  and  mental 
defects  —  in  this  case  probably  identical  ^-ith  invahdism 
and  insanity  —  unless  it  be  in  the  individual  natural  disposi- 
tion? This  is  the  instrument  on  which  the  storm  of  life 
strikes  discords  that  clash  harshly  in  our  ears. 

All  theoretical  considerations  are  powerless  before  the 
weight  of  these  figures,  representing  as  they  do  the  experience 
of  those  who  are  in  daily  contact  with  criminals.  We  must 
reckon  with  an  army  of  criminals  who,  under  existing  con- 
ditions, cannot  be  fitted  into  a  regulated  life.     If  we  look 

1  "Statistik  der  zum  Ressort  des  Koniglich  Preussischen  Ministeriums  des 
Innem  gehorenden  Strafanstalten  und  Gefangnisse,"  Berlin,  1900. 


§20] 


CLASSIFICATION  OF  CRIMINALS 


203 


closer  at  these  men,  we  shall  find  that  outward  causes  play  a 
very  dififerent  part  in  their  lives;  one  gives  way  at  the  slightest 
touch,  another  only  after  resisting  temptation  for  a  long  time, 
but,  as  far  as  human  power  can  judge,  they  one  and  all  even- 
tually succumb. 

TABLE  XXXV 
That  the  Convict  after  his  Release  will  Recidivate  is 


Pbobable 

Because  of 

Doubtful 

Impbob- 
able 

Incobbig- 

IBILITT 

Physical 
OB  Mental 
Defects 

Otheb 
Reasons 

Men  .    .    . 
Women     . 

14,726 
2,319 

14,441 
2,217 

163 

38 

122 
64 

440 
123 

373 
68 

Total     . 

17,045 

16,658 

201 

186 

563 

441 

Men  .    .    . 

Women 

8,369 
1,132 

8,357 
1,128 

1900-1902 

10 
4 

1 

2 

225 
30 

92 

26 

Total     . 

9,501 

9,485 

14 

2 

255 

118 

Now,  are  all  these  socially  "  incorrigibles "  morally  insane 
persons,  incorrigible  because  they  lack  the  ability  to  perceive 
and  follow  the  laws  of  morality?  "Moral  insanity"  is  a  much 
disputed  conception,  and  the  controversy  as  to  whether  a 
disease  can  appear  exclusively  in  ethical  defects  is  not  yet 
at  an  end.^  Hence,  I  can  only  give  my  own  personal  point  of 
view  here:  I  do  not  believe  in  the  existence  of  this  disease. 
All  the  cases  diagnosed  as  such  with  which  I  have  come  in 

*  After  Neuhaus,  "Die  riickfalligen  Verbrecher  Preussens  von  1900-1902." 
(Zeitschrift  des  Koniglichen  Preussischen  statistischen  Bureaus.  24  Jahrg. 
m  Abt.) 

*  Gaupp,  "tlber  den  heutigen  Stand  der  Lehre  vom  'geborenen  Ver- 
brecher'" (MSchrKrimPsych.  I,  25),  and  "Uber  moralisches  Irresein  und 
jugendliches  Verbrechertum,"  Halle,  1904. 


204  THE  INDIVIDUAL  CAUSES  OF  CRIME        [§20 

contact  were  either  accompanied  by  pronounced  intellectual 
defects,  or  were  merely  symptoms  of  serious  neuroses  and 
psychoses  which  had  failed   to  be   recognized. 

With  this  view,  which,  by  the  way,  is  almost  universally 
shared,  there  is  no  longer  cause  for  the  frequently  expressed 
apprehension  that  the  alienists  will  see  in  every  criminal  an 
insane  person  who  belongs  in  their  hands  rather  than  in  those 
of  the  criminal  judge.  I  mentioned  in  the  last  chapter  that 
serious  mental  diseases  exist  oftener  than  judges  think,  but 
"de  lege  data,"  we  are  modest  in  applying  §  51.  We  do  not 
go  nearly  so  far  as  Krohne  ^  desires,  whom  experience  of  crim- 
inal justice  induces  to  say:  "The  more  the  conception  of  the 
pathological  disturbance  of  the  mind  which  entirely  pre- 
cludes the  exercise  of  free  will  is  comprehended  by  legislators 
and  judges,  the  more  possible  will  it  be  to  remove  from  society 
the  large  number  of  mentally  defective  persons  who  are  not 
able  to  withstand  the  temptation  to  transgress  the  law,  and 
thus  become  a  true  pest  to  society  and  to  the  judge,  either  for 
always,  or  until  they  are  no  longer  dangerous."  We  are  for- 
bidden to  go  as  far  as  this  at  present  by  the  narrowly  limited 
text  of  the  laws  and  by  the  opposition  of  the  judges,  who 
are  often  extremely  difficult  to  convince  of  the  existence  of 
serious  psychoses.  I  also  fear  that  there  would  be  no  end 
to  those  exempted,  if  we  should  proceed  according  to  this 
proposal. 

The  establishment  of  the  outward  circumstances  under 
which  a  crime  is  committed  made  it  possible  clearly  to  per- 
ceive a  number  of  causes  of  crimes,  of  which  I  would  mention 
again  the  influence  of  the  seasons,  the  economic  situation, 
and  popular  or  national  customs.  From  this  it  follows  that 
crime  is,  in  the  first  place,  a  social  phenomenon;  every  age  has 
the  crimes  that  it  produces.  But  not  everyone  becomes  a 
^  Krohne,  loc.  cit.  p.  274. 


§20]  CLASSIFICATION  OF  CRIMINALS  205 

criminal ;  an  individual  or,  as  Sommer  ^  calls  it,  an  endogenic 
disposition,  is  necessary  for  that.  This  is  the  true  kernel  of 
Lombroso's  doctrine,  even  if  the  stigmata  that  he  gives  are 
wrongly,  or  not  sufficiently,  proven.  Every  crime  is  the 
product  of  natural  disposition  and  training,  of  the  individual 
factor  on  the  one  side,  and  of  the  social  conditions  on  the  other. 

It  would  be  very  fine  if  we  could  use  this  point  of  view  as  a 
sign-post  in  classifying  criminals.  They  would  then  be  divided 
according  to  whether  the  individual  or  the  social  factor 
predominated.  But  any  such  attempt  unfortunately  meets 
with  the  great  obstacle  that  both  causes  are  united  in  almost 
every  crime,  and  yet,  for  practical  reasons,  an  effort  at 
classification  cannot  be  avoided.  Any  division  into  groups 
has  something  forced  about  it;  the  wealth  of  nature  fights 
against  being  classified  in  an  artificial  plan.  This  must  be 
grasped  at  the  outset,  so  that  the  establishment  of  dififerent 
forms  will  not  be  misunderstood;  they  are  not  and  must  not 
be  more  than  a  guide  to  aid  in  finding  the  way  amid  the 
multifariousness  of  the  phenomena. 

Classification  from  the  psychological  standpoint  would  be 
the  best  if  it  were  at  all  possible.  At  present,  however,  the 
problem  is  absolutely  unsolved,  and  such  attempts  lead  only 
to  the  most  adventurous  constructions,  without  any  value. 
As  a  curiosity,  that  of  Krauss  ^  may  be  mentioned,  who 
divides  criminals  into  (a)  men  of  strength  ("  Kraf tmenschen  ") : 
1,  the  monster  ("Ungetiim"),  2,  the  choleric  individual 
("Choleriker"),  3,  the  passionate  individual  ("der  Leiden- 
schaftliche ") ;  (b)  the  malicious  ("Bosartigen"):  1,  the 
demoniacal  ("der  Damonische ") ,  2,  the  intrigant,  3,  the 
rogue  ("Schurke");  and  (c)  the  weaklings  ("Schwachlinge"): 
1,  the    scamp     ("Schuft"),    2,  the    sneak     ("Schleicher"), 

»  Loc.  cit.  313. 

*  Krauss,  "Die  Psychologic  des  Verbrechens,"  Tubingen,  1884,  p.  227. 


206  THE  INDIVIDUAL  CAUSES  OF  CRIME        [§20 

3,  the  vagabond  ("Lump"),  4,  the  Cahban.  This,  of  course, 
is  nothing  but  pure  novehstic  psychology. 

Ferri  ^  distinguishes  between  five  groups:  criminal  insane, 
born  criminals,  criminals  by  acquired  habit,  occasional 
criminals,  and  criminals  of  passion.  As  Ferri  only  intended 
to  deal  with  the  sociological  significance  of  criminals,  he  does 
not  hesitate  to  include  the  insane.  The  consequence  is,  that 
he,  and,  to  an  even  greater  extent,  Lombroso,  obliterate  the 
line  between  psychic  disease  and  criminality.  The  individu- 
als cited  by  Lombroso  as  examples  of  mattoids  (semi-insane 
persons)  were  all  actually  insane.  The  born  criminal  is  dis- 
tinguished from  the  criminal  by  acquired  habit,  in  that,  from 
his  earliest  youth,  criminal  instincts  are  inherent  in  him, 
whereas  they  are  merely  early  implanted  and  developed  in 
the  other  as  a  result  of  physical  and  social  evils  and  neglect. 

As  the  starting  point  of  his  classification  Olrik  ^  takes  the 
criminal  will,  through  which  the  purpose  of  the  penalty 
(the  protection  of  society  by  deterrence,  discipline,  and 
rendering  the  criminal  innocuous)  is  determined.  He  dis- 
tinguishes three  main  groups,  according  to  whether  the  will 
is  weak,  of  average  (normal)  strength,  of  particular  intensity 
and  obstinacy.  In  view  of  the  diflBculty  of  estimating  the  will 
according  to  these  gradations,  I  consider  the  principle  un- 
practical and  too  subjective. 

At  its  meeting  in  Heidelberg,  in  1897,  the  "Internationale 
Kriminalistische  Vereinigung"  distinguished  three  groups:  ^ 

1.  Momentary  (occasional)  criminals; 

2.  Those  criminals  whose  crime  and  preceding  life  show 
that,  in  consequence  of  defective  inteUigence  or  training,  or 

^  Loc.  cit.  p.  85. 

'  Olrik,  "t)ber  die  Einteilung  der  Verbrecher  mit  besonderer  Riicksicht 
auf  die  Unterscheidung  zwischen  Gelegenheits-  iind  Gewohnheitsverbrechern  " 
(ZStW.  XIV,  76). 

3  Mitteil.  der  I.  K.  V.,  VI,  582. 


§20]  CLASSIFICATION  OF  CRIMINALS  207 

in  consequence  of  later  influences,  their  ability  to  subject 
themselves  to  the  existing  standards  is  weakened,  and  with 
whom  the  apprehension  seems  well-founded  that  neither  a 
fine  nor  a  brief  loss  of  liberty  will  be  of  suflScient  effect : 

3.  Criminals  whose  rehabilitation  in  social  life  as  regulated 
by  law  can  no  longer  be  expected. 

As  its  sole  leading  idea,  this  classification  has  taken  the 
menace  to  legal  security,  as  appears  in  the  direct  connection 
of  the  classification  with  the  penalties  to  be  applied,  and  it  is 
the  menace  to  legal  security  that  arises  from  the  natural  dis- 
position of  the  criminal,  not  that  which  is  due  to  the  frequently 
accidental  gravity  of  the  crime,  that  is  considered.  I  should 
like  to  adhere  to  this  grouping,  but  consider  it  desirable  to 
divide  it  still  further.  My  classification  is  composed  of  the 
following  seven  groups: 

1.  Chance  criminals, 

2.  Criminals  of  passion, 

3.  Criminals  of  opportunity, 

4.  Deliberate  criminals, 

5.  Recidivists, 

6.  Habitual  criminals,  and 

7.  Professional  criminals. 

Chance  criminals  are  those  who  come  into  contact  with  the 
Penal  Code  as  a  result  of  carelessness.  A  cellar  door  left 
open,  a  burning  match  carelessly  thrown  away,  an  error  in  a 
prescription  written  in  a  moment  of  mental  fatigue,  careless 
driving,  a  runaway  horse,  any  of  these  things  may  put  the  most 
respectable,  humane  man  in  the  dock.  Often  the  damage  done 
is  enormous,  as,  for  instance,  in  railway  accidents,  while  the 
responsible  switchman  may  be  still  less  to  blame  on  account 
of  extreme  over-fatigue.  There  is  absolutely  no  suspicion 
of  any  intention  to  injure  public  legal  security. 

This  is  also  true  to  a  great  extent  of  the  criminal  of  passion, 


208  THE  INDIVIDUAL  CAUSES  OF  CRIME        [§20 

who  is  carried  away  in  a  moment  of  excitement  and  loses  his 
power  of  deliberation.  His  crime,  as  Olrik  says,  is  produced 
solely  by  his  emotion,  of  which  it  is  the  natural  expression, 
and  the  passion  itself  is  psychologically  explicable  and  ex- 
cusable. The  case  of  the  husband  who  surprises  his  wife  in 
adultery  and  kills  her  is  often  quoted  as  a  typical  example. 
The  idea  of  emotional  passion  has  found  far-reaching  recogni- 
tion in  the  German  Penal  Code  in  the  conception  of  defense. 
The  significance  of  passionate  excitement  seems  to  me  to  be 
especially  important  in  mob  crimes,  the  commission  of  which 
has  been  discussed  on  page  121. 

I  should  like  to  limit  the  expression  "criminal  of  passion" 
to  those  who  act  in  a  momentary  wave  of  passionate  emotion, 
in  acute  excitement,  and  not  include,  as  does  von  Liszt,^ 
those  individuals  who  are  constantly  dominated  by  passions; 
he  mentions,  for  instance,  several  notorious  women  poisoners. 
These  persons  are  continually  under  the  influence  of  their 
emotional  excitability;  it  is  their  innate  character  that  de- 
termines their  action,  not  an  external  impulse,  which,  in  the 
storm  of  feelings,  destroys  all  cool  reflection. 

Closely  related  to  the  crimes  of  passion,  but  distinguished 
from  them  by  greater  weakness  of  the  excited  emotions, 
are  the  crimes  of  opportunity.  It  is  proverbial  that  the  op- 
portunity makes  the  thief.  For  the  poor  devil  who  keeps  a 
piece  of  money  that  he  has  found,  for  the  starving  wretch 
who  appropriates  a  loaf  of  bread  in  passing  a  baker's  shop, 
temptation  is  overwhelming.  In  the  one  case  it  is  more  ex- 
ternal chance,  in  the  other,  physical  condition,  that  favors  the 
commission  of  the  crime.  These  are  the  least  serious  cases, 
in  which  everyone  will  view  the  deed  in  a  mild  light.  There 
are  graver  instances,  however,  in  which,  though  the  chance 
opportunity  is  indeed  the  outward  occasion,  the  deed  itself 
1  von  Liszt,  "  Straf rechtliche  Aufsatze  und  Vortrage,"  II,  187. 


§20]  CLASSIFICATION  OF  CRIMINALS  209 

indicates  particular  weakness  of  character.  In  this  class 
belong  many  criminals  against  sexual  morality  and  the  thief 
who  robs  the  till  that  he  happens  to  find  open  in  a  shop. 
To  such  crimes,  too,  must  be  added  probably  most  of  the 
excesses  due  to  alcohol,  in  which  the  emotional  passion  must 
be  considered  of  secondary  value. 

All  those  ofiFenses  against  the  legal  order  which  have  just 
been  mentioned  have  this  in  common,  that  they  owe  their 
origin  especially  to  chance,  to  an  unfortunate  constellation; 
these  are  only  different  forms  of  what  the  "Internationale 
Kriminalistische  Vereinigung"  calls  "momentary  (or  occa- 
sional) crimes."  The  subdivision,  however,  makes  it  appear 
distinctly  that  in  the  class  of  momentary  criminals  there  are 
also  highly  respectable  persons,  who  are  divided  by  a  very 
deep  chasm  from  the  thieves  who  rob  the  cash-drawer. 

Quite  different  must  be  our  judgment  of  the  crime  that  is 
carried  out  with  deliberation,  the  preliminary  condition  of 
which  is  the  calm,  premeditated  plan;  with  no  trace  of  haste 
the  scheme  is  formed  and  executed.  There  is  a  vast  difference 
between  the  psychological  processes  that  lead  to  embezzle- 
ment or  the  theft  of  food,  on  the  one  side,  and  to  burglary 
that  is  most  intelligently  carried  out  with  all  the  advantages 
of  modern  technique,  on  the  other. 

In  individual  cases,  it  is  true,  the  boundaries  are  blurred. 
When  the  opportunity  is  particularly  tempting,  when  a  theft 
happens  to  be  particularly  easy  of  execution,  the  act,  in  spite 
of  its  premeditation,  loses  something  of  its  gravity  and  often 
assumes  almost  the  character  of  an  opportunity  that  was  not 
allowed  to  slip.  A  crime  that  is  committed  in  a  moment  of 
excited  passion  also  sometimes  approaches  a  premeditated 
one,  when,  for  external  reasons  perhaps,  the  immediate  reac- 
tion to  the  insult  or  injury  that  has  been  done  to  the  man's 
honor  was  not  possible.    The  excitement,  somewhat  reduced 


210  THE  INDIVroUAL  CAUSES  OF  CRIME        [§20 

in  strength  perhaps,  continues,  and  thus  may  later  lead  to  a 
premeditated  crime.  Nevertheless,  the  psychological  esti- 
mation of  the  act  that  is  committed  in  the  moment  of  passion, 
and  the  one  that  is  delayed,  is  naturally  diflferent,  although 
the  two  are  inwardly  related. 

Much  more  dangerous  to  legal  security  are  those  crimes 
that  are  carried  out  with  the  systematic  use  of  all  the  advan- 
tages that  offer;  the  danger  grows  if  the  perpetrator  adapts 
the  outward  circumstances  to  his  wishes,  and  if  he  combines 
with  others  for  the  purpose  of  committing  the  crime. 

The  Penal  Code  regards  as  a  relapse  the  repetition  of  the 
same  crime  after  the  earlier  sentence  has  been  served.  Psy- 
chologically, however,  the  term  must  be  more  broadly  com- 
prehended. We  must  recognize  as  a  relapse  the  repetition 
of  the  crime,  even  if  no  penalty  lies  between  the  commission 
of  the  two  acts.  But  it  is  not  enough  that  an  individual  shows 
the  same  weak  power  of  resistance  to  the  same  temptation; 
we  must  also  regard  it  as  a  relapse  if  the  offenses  that  he  com- 
mits, such  as  theft,  concealing  stolen  goods,  embezzlement, 
and  fraud,  or  such  as  assault  and  battery  and  insult,  spring 
from  similar  psychological  motives.  According  to  the  exist- 
ing criminal  law,  however,  unless  he  commits  the  same 
crime,  a  man  is  not  considered  a  recidivist,  except  in  the  case 
of  theft,  and  then  he  must  have  been  twice  convicted  for 
receiving  stolen  goods,  robbery,  or  robbery  and  extortion. 

It  must  not  be  left  unsaid  that  women  show  a  stronger 
tendency  to  relapse  than  men.  Sacker  ^  seeks  the  reasons  for 
this,  partly  in  the  nature  of  woman,  which  is  quicker  to  ac- 
quire a  habit  and  clings  to  it  longer,  and  partly  in  the  diffi- 
culty with  which  women  must  make  their  way  in  the  world. 
The  first  reason  seems  to  me  less  important  than  the  second. 

'  Sacker,  "Der  Riickfall"  (Abhandlungen  des  kriminalistischen  Seminars, 
III,  Berlin,  Guttentag). 


§20]  CLASSIFICATION  OF  CRIMINALS  211 

"L'homme  peut  braver  I'opinion  publique,  la  femme  s'y 
doit  soumettre,"  quotes  Sacker,  and  rightly.  A  woman 
who  has  once  been  convicted  has  much  more  difficulty  in  find- 
ing a  new  situation  than  has  a  man,  and  therefore  sinks 
more  easily. 

While  our  penal  code  takes  no  account  of  former  con- 
victions unless  they  were  of  the  same  crime,  our  criminal 
statistics  include  as  recidivists  all  persons  who  have  already 
been  convicted  —  for  good  reasons.  Only  in  this  way  can  we 
get  an  idea  of  the  danger  that  threatens  society  from  the 
habitual  criminal.  It  would  be  a  mistake  to  see  in  him  always 
the  activity  of  positive  criminal  tendencies.  A  large  number 
of  the  more  harmless  habitual  criminals,  the  tramps,  who  are 
the  daily  bread  of  the  police  organs  and  district  courts,  are 
characteristic  examples  of  an  habitual  criminality,  due  mainly 
to  negative  qualities.  Incapable  of  serious  work,  dulled  to 
all  fear  of  punishment,  indifferent  to  everything,  they  wander 
from  place  to  place,  suffering  hunger  and  thirst,  frost  and 
intense  heat,  sleeping  sometimes  under  shelter,  sometimes 
in  the  gutter,  and  yet  only  a  very  few  among  them  are  able 
to  brace  themselves  and  return  to  a  life  of  industry. 

Among  the  remaining  habitual  criminals,  too,  negative 
qualities  predominate,  especially  in  those  who  grow  up  in  a 
criminal  environment  with  no  fear  of  the  disgrace  of  punish- 
ment, become  utterly  depraved,  and  live  on  lazily  and  plan- 
lessly  from  day  to  day.  Their  criminal  activity  changes  with 
their  opportunities  and  needs.  Their  attempts  to  work  their 
way  up  fail  because  of  their  inability  to  withstand  the  temp- 
tations that  are  all  too  frequent  in  the  mire  in  which  they 
live. 

Much  smaller  is  the  number  of  criminals  with  positive 
criminal  desires.  Usually  they  only  gradually  develop  into 
what  they  are,  but  once  they  have  become  specialists  of  a 


212  THE  INDIVIDUAL  CAUSES  OF  CRIME        [§  20 

certain  kind,  they  are  irredeemably  lost  to  society.  Their 
intelligence  is  greater  than  that  of  the  common  scamp  who 
takes  any  opportunity  that  offers;  generally  they  work  on  a 
large  scale.  To  this  class  belong  the  international  pick- 
pockets, who  only  "work"  on  great  occasions,  at  horse-races, 
etc.,  the  burglars  who  operate  with  all  kinds  of  chemical  and 
technical  appliances,  and  the  "gentlemen  swindlers"  ("Hoch- 
stapler").  To  them,  all  crime  is  a  profession.  It  is  remark- 
able that  our  legislation  knows  of  no  "occupational  crime" 
except  concealing  stolen  goods,  gambling,  poaching,  usury, 
and  prostitution,  that  "the  legislator  is  entirely  unacquainted 
with  precisely  the  chief  present-day  types  of  crime  as  an 
occupation.^"  It  is  just  these  criminals  who  are  incorrigible 
in  the  true  sense  of  the  word.  They,  together  with  a  small 
proportion  of  the  habitual  criminals,  correspond  to  the  group 
classified  by  the  "Internationale  Kriminahstische  Vereini- 
gung"  as  "criminals  whose  rehabilitation  in  regulated  social 
life  can  no  longer  be  expected." 

Our  statistics  show,  it  is  true,  that  the  number  of  the 
" incorrigibles  "  is  very  much  larger;  in  the  social  sense,  prob- 
ably at  least  half  of  all  the  penitentiary  prisoners  are  irre- 
deemably lost.  The  majority  of  this  group  is  made  up  of 
habitual  criminals,  only  a  small  proportion  being  criminals 
by  occupation.  This  distinction  has  more  than  a  theoretical 
interest.  In  both  cases  the  menace  to  the  legal  security 
arises  from  the  individual  disposition.  One  group,  however, 
succumbs  rather  to  inability  to  get  on  honestly  in  the  world, 
an  inability  that  is  often  connected  with  physical  and  mental 
inferiority,  almost  always  with  insufficient  and  defective  train- 
ing and  education.  The  professional  criminal,  on  the  other 
hand,  just  because  of  his  consistent  and  purposeful  activity, 
his  energy  and  his  pleasure  in  his  occupation,  will,  from  the 
1  txm  lAszt,  "  Strafrechtliche  Aiifsatze  und  Vortrage,"  U,  323. 


§20]  CLASSIFICATION  OF  CRIMINALS  213 

beginning,  oppose  any  attempt  to  improve  him  with  a  much 
greater  inner  resistance,  which  leaves  Uttle  ground  for  hope. 

This  classification  does  not  pretend  to  be  easily  mastered. 
It  will  not  always  be  possible,  even  after  long  study  of  the 
individual,  to  classify  every  criminal  correctly.  Often,  too, 
one  form  develops  out  of  another.  Still,  if  all  the  causes  of 
a  crime  are  carefully  considered  and  the  character  of  the 
perpetrator  sufficiently  studied,  it  ought  always  to  be  possible 
to  ascertain  to  which  group  he  approaches  most  nearly. 

The  value  of  such  a  tedious  separation  of  the  harmless  from 
the  socially  dangerous  does  not  lie  in  the  desire  to  systematize, 
but  in  its  bearing  on  the  future,  which  appears  in  quite 
another  light  if  we  are  confronted  by  a  chance  criminal  in- 
stead of  a  professional  criminal.  And  on  this  depends  what 
is  most  important  of  all,  the  method  to  be  used  in  the  war 
against  crime. 


PART  ni 

THE  STRUGGLE  AGAINST  CRIME 

§  21.  The  Criminal  Physiognomy  of  the  Present 

The  menace  to  public  safety  from  crime  has  assumed  pro- 
portions that  must  be  somewhat  threatening,  even  to  the  most 
unshakable  optimism.  Wach  ^  does,  indeed,  assert  that 
"No  one  will  deny  that  we  are  living  in  an  orderly,  healthy, 
and  satisfactory  legal  state,"  and  further,  "Even  the  dis- 
quieting impression  that  our  criminal  statistics  at  first  make 
decreases  on  closer  observation."  He  explains  this  by  point- 
ing out  that,  on  examination,  we  find  the  number  of  first 
convictions  to  be  on  the  decrease,  and  the  whole  increase  to 
be  placed  to  the  account  of  recidivists. 

According  to  this,  in  order  to  obtain  a  correct  impression 
of  present-day  legal  conditions,  we  must  consider  three 
questions :  first,  has  the  number  of  delinquents  not  previously 
convicted  really  decreased;  secondly,  what  is  the  theoretical 
and  practical  significance  of  the  increase  in  the  "recidivists"; 
and,  thirdly,  can  the  legal  condition  in  which  we  are  living 
really  be  called  healthy? 

It  is  true  that  the  number  of  those  not  previously  convicted 
has  decreased.  Of  the  last  twenty  years  the  year  1900  has 
the  lowest  number  of  those  convicted  for  the  first  time.  But 
this  decrease,  unfortunately,  is  very  slight,  and  is  not  an 
absolute  one,  but  is  only  in  proportion  to  the  total  population. 
The  gaps  left  in  the  criminal  army  by  disease  and  death, 
emigration  and  imprisonment,  are  almost  entirely  refilled  by 
^  Wach,  "Zukunft  des  Strafrechts,"  p.  6. 


216  THE  STRUGGLE  AGAINST  CRIME  [§  21 

newcomers.  Thus  there  can  be  no  question  of  any  decrease 
worth  speaking  about  in  criminal  tendencies  in  general. 
This  is  most  clearly  proved  by  a  summary  of  the  last  twenty 
years,  in  four  sections. 

To  be  sure,  even  then  the  last  five  years  are  the  most  favor- 
able. But  the  whole  decrease  in  criminality  amounts  to  only 
one  person  for  every  million  persons  of  punishable  age.  And 
if  we  consider  the  different  crimes  separately,  even  the  most 
incorrigible  optimist  can  no  longer  rejoice  at  the  supposed 
decrease  in  the  number  of  first  convictions.  If  we  do  not 
include  larceny,  which  is  too  largely  influenced  by  economic 
fluctuations,  improvement  is  found  only  in  the  offenses  of 
resistance  to  State  authority  and  violation  of  oath.  The 
number  of  first  convictions  for  assault  and  battery,  fraud,  and 
offenses  against  chastity  and  decency,  on  the  contrary,  is 
increasing  considerably.  It  affords  us  only  a  crumb  of  comfort 
to  know  that  the  share  of  the  recidivists  in  these  offenses  has 
increased  much  more  rapidly  than  that  of  those  convicted 
for  the  first  time,  and  that  a  larger  percentage  of  most  crimes 
are  committed  by  them  than  by  the  beginners. 

The  latter  is  especially  noticeable  in  the  case  of  juveniles,  — 
for  obvious  reasons.  Six  years  is  such  a  short  period  that 
the  individual  is  no  longer  a  minor  when  later  sentences  are 
imposed.  But  is  not  the  fact  that  nearly  one-fifth  of  all  the 
juveniles  sentenced  have  already  been  convicted  once,  and 
some  even  six  times  and  more  without  a  parallel  in  sadness.'' 
If,  at  the  same  time,  the  number  of  all  formerly  unconvicted 
delinquents  had  decreased,  we  might  be  more  inclined  to 
console  ourselves  with  the  idea  that  these  early  corrupt 
persons  represent  the  share  contributed  by  mental  and 
physical  inferiority.  But,  instead  of  that,  we  see  a  fresh  and 
evergrowing  stream  of  juveniles  appearing  before  the  criminal 
judge.    What  makes  this  of  graver  significance  than  it  would 


§21]   CRIMINAL  PHYSIOGNOMY  OF  THE  PRESENT    217 


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218 


THE  STRUGGLE  AGAINST  CRIME 


[§21 


be  with  adults,  is  the  fact  that,  annually,  of  every  thousand 
young  persons,  six  are  dealt  with  by  the  courts,  and  that  our 
educational  methods  cannot  succeed  in  checking  the  new  sup- 
ply that  annually  feeds  the  army  of  criminals. 


TABLE  XXXVII 1 
Convictions  per  100,000  Minors 


Yeabs 

Not 
fobmerly 
Convicted 

fobmerlt 
Convicted 

Fobmehlt 
Convicted 

_  ONCE 

formeblt 
Convicted 

TWICE 

FoBMEBLT 

Convicted 
3  TO  5 
Times 

Fobmehlt 

Convicted 

6  OB  MORE 
TXMBS 

1889     .    . 

521 

93 

58 

20 

14 

1.1 

1890 

556 

107 

67 

24 

15 

1.1 

1891 

559 

113 

70 

26 

16 

1.4 

1892 

604 

125 

76 

29 

19 

1.7 

1893 

567 

119 

72 

26 

19 

2.0 

1894 

583 

133 

79 

29 

22 

2.7 

1895 

571 

131 

78 

29 

22 

2.4 

1896 

570 

132 

77 

28 

24 

2.9 

1897 

571 

131 

80 

27 

21 

2.9 

1898 

605 

139 

83 

30 

23 

2.9 

1899 

595 

138 

85 

29 

21 

2.7 

1900 

607 

138 

82 

30 

23 

3.2 

1901 

604 

135 

81 

29 

22 

2.9 

The  most  important  crimes  committed  by  juveniles  were 
given  in  Table  XXX;  the  figures  show  a  steady  increase  since 
the  year  1882,  except  in  simple  theft.  The  offenses  enumer- 
ated have  not  been  subjected  to  any  change  in  the  legislative 
enactments  during  the  years  reported.  Hence,  the  conclusion 
is  unavoidable  that  brutality,  recklessness,  and  licentiousness 
are  spreading  more  and  more  in  the  growing  generation. 
The  reasons  for  this  have  already  been  discussed;  I  merely 
wish  here  once  more  to  establish  the  fact,  how  extraordi- 
narily dangerous  juvenile  criminality  and  its  continued  in- 
crease are. 

The  number  of  juveniles  convicted  during  the  last  year 

1  "Statistik  f.  d.  Deutsche  Reich,"  N.  F.  CXLVI,  I,  p.  37. 


§21]    CRIMINAL  PHYSIOGNOMY  OF  THE  PRESENT   219 

(1903)  of  the  imperial  statistics  amounted  to  50,219.  Nearly 
four-fifths  of  these  were  entering  the  criminal  world  for  the 
first  time,  soon  to  compete  with  its  veterans.  But  that  the 
first  step  does  not  usually  mean  merely  a  single  lapse,  but 
generally  the  final  break  with  a  mode  of  life  in  accordance  with 
the  law,  is  shown  by  the  number  of  recidivists;  each  convic- 
tion heightens  the  danger  of  relapse.  Again  and  again  we  are 
confronted  by  the  fact  that  redemption  from  crime  becomes 
the  more  difficult,  the  oftener  the  person  has  been  convicted. 
A  number  of  those  already  convicted  as  juveniles  attain  their 
majority  every  year;  they  are  then  lost  to  view  in  the  general 
herd  of  recidivists. 

This  state  of  affairs  is  depressing  enough. 

Here,  too,  we  see  that,  from  year  to  year,  those  who  have 
already  served  sentences  are  more  strongly  represented  among 
the  convictions.  The  number  of  those  convicted  three  times 
and  more  has  doubled  and  trebled.  The  last  two  rows  of  the 
table  show  the  course  of  those  crimes  in  which  relapse  is 
considered  an  aggravation  of  the  offense,  because  the  repetition 
of  the  same  crime  implies  its  professional  practice.  Habitual 
fraud  has  grown  considerably  more  frequent  in  the  twenty 
years  given,  while  the  number  of  repeated  thefts  has  decreased. 
But  this  does  not  prove  that  the  professional  thief  has  really 
grown  rarer. 

Among  the  recidivating  thieves,  just  as  among  those  con- 
victed for  the  first  time,  there  are  certainly  not  a  few  who  suc- 
cumb the  more  readily  to  temptation,  the  more  unfavorable 
external  conditions  are.  This  is  supported  by  the  fact  that 
we  find  the  highest  number  of  recidivating  thieves,  as  dis- 
cussed on  p.  105,  in  the  economically  poor  years  1882  and  1892, 
and  the  lowest  number  in  1888  and  1900.  I  think  we  may 
assume  that  the  professional  thief  is  influenced  by  prosperous 
or  hard  times  only  as  regards  the  success  of  his  actions,  not 


220 


THE  STRUGGLE  AGAINST  CRIME 


[§21 


as  regards  the  intensity  with  which  he  practises,  while  the 
decrease  in  the  repeated  thefts  is  at  the  cost  of  the  somewhat 
more  harmless  occasional  thief. 


TABLE   XXXVmi 
Convictions  per  100,000  Persons  of  Punishable  Age  in  Germany 


All  Cbiues  akd  Offenses 

o 
a 
f 
< 
s 
s. 
m 
« 

!- 
S 

D  a 

Yeabs 

o 

K 

a 

h 

z 

o 

So 

»  a 

05  ft 
<  > 

o 

r-    > 

■k 
o 
U 

S  z 
a  o 

1—  u 

i 
|i 

1  n 

«  Z 

«i 

o  z 

1882 

736 

259 

114 

56 

64 

23 

2.8 

47 

1883 

717 

267 

119 

59 

68 

20 

2.9 

47 

1884 

741 

284 

126 

63 

72 

22 

3.3 

45 

1885 

716 

290 

126 

63 

74 

26 

3.5 

43 

1886 

717 

303 

129 

65 

79 

31 

3.8 

42 

1887 

708 

312 

130 

66 

81 

34 

4.4 

40 

1888 

677 

307 

127 

65 

80 

35 

4.4 

37 

1889 

690 

340 

141 

71 

87 

41 

4.8 

40 

1890 

687 

362 

150 

76 

93 

43 

4.9 

39 

1891 

691 

382 

157 

79 

98 

47 

5.6 

40 

1892 

732 

417 

169 

87 

107 

54 

6.0 

45 

1893 

731 

427 

171 

88 

111 

57 

6.4 

41 

1894 

736 

459 

181 

93 

120 

65 

6.8 

42 

1895 

727 

473 

183 

96 

124 

70 

7.2 

40 

1896 

714 

483 

183 

96 

129 

75 

7.5 

40 

1897 

710 

494 

187 

99 

129 

78 

7.8 

39 

1898 

713 

506 

189 

101 

133 

83 

8.4 

40 

1899 

695 

506 

187 

100 

133 

85 

8.1 

38 

1900  ..... 

670 

494 

180 

97 

131 

86 

8.5 

37 

1901 

695 

528 

191 

102 

141 

95 

9.2 

41 

Since  a  few  years  the  statistical  department  has  tried  to 
carry  out  a  new  calculation,  that  is,  to  keep  an  account  of 
the  fate  of  every  convicted  person. 

Released  offenders  reappear  before  the  criminal  court  in  an 
astonishingly  short  space  of  time;    the  sooner,  the  more  fre- 

1  After  "Statistik  des  Deutschen  Reiches,"  N.  F.  CXL\T,  I,  p.  19. 


§  21]    CRIMINAL  PHYSIOGNOMY  OF  THE  PRESENT   221 

quently  they  have  already  been  convicted.  The  number  of 
former  convictions  is  naturally  a  direct  proof  of  criminal 
tendencies,  yet  it  is  surprising  to  learn  that  the  relapse  into 
crime  often  occurs  within  the  same  year;  this  happens  in  4% 
of  the  cases  of  those  already  convicted  once,  in  6%  of  the 
cases  of  those  who  have  five  or  more  convictions  against  them. 
It  must  not  be  overlooked  that  the  sixth  and  all  additional 


TABLE  XXXIX 1 

Former  Convictions  per  1000  Persons  Convicted  between  1894 
AND    1896 


No  Former 
Conviction 

1    FOBMEB 

Conviction 

2  TO  4 

Former 

Convictions 

5  OB  more 

Former 

Convictions 

In  the  first  year    .... 
"    "    second  year    .    .    . 
"    "    third       "       ... 
"    "    fourth     "       ... 
"    "    fifth        "       ... 

47.4 
37.6 
28.5 
23.5 
19.4 

130.1 
98.4 
69.4 
53.6 
41.3 

189.4 

144.8 

95.4 

69.3 

50.4 

249.4 

203.3 

130.9 

84.5 

59.1 

Not   re-convicted   during 
the  5  years  following  the 
last  conviction  .... 

156.4 
843.6 

392.8 
607.2 

549.3 
450.7 

727.2 
272.8 

sentences  usually  commit  the  individual  to  prison  or  peni- 
tentiary for  many  years,  so  that  he  is  deprived  of  the  oppor- 
tunity for  other  offenses  for  a  long  time. 

Of  the  98,411  persons,  who  at  the  time  of  their  conviction, 
in  the  years  1894  to  1896,  had  already  served  five  or  more 
sentences,  72.7%  recidivated  in  the  course  of  the  five  years 
following  their  last  conviction.  I  can  scarcely  believe  that 
this  number  will  rise  much  higher  in  the  next  years.  Emigra- 
tion, disease,  death,  and  long  imprisonment  probably  so  de- 
crease the  number  of  the  persons   recognized  as  habitual 


»  "Statistik  des  Deutschen  Reiches,"  CXLVI,  I,  p.  97. 


222  THE  STRUGGLE  AGAINST  CRIME  [§21 

criminals  in  the  years  reported,  that  it  would  nearly  approach 
100%  if  we  could  take  into  account  the  reduction  made  by 
the  factors  mentioned  above.  This,  too,  would  agree  with  the 
experience  of  prison  officials  discussed  on  page  202, 

A  consideration  of  the  kind  of  relapse  shows  us,  further, 
that  most  habitual  criminals  are  not  particular  in  their  choice 
of  crimes  and  do  not  limit  themselves  to  one  kind  or  one  group 
of  crimes  of  psychologically  equal  value.  Of  the  relapses 
that  occurred  during  the  years  1899  to  1901,  37.8-38.1% 
were  similar  in  nature,  20.6-20.7%  were  not  similar  but  re- 
lated, and  41.3-41.6%  were  neither  similar  nor  related. 
The  very  slight  variation  in  the  different  years,  which  does  not 
amount  to  more  than  0.3%,  shows  that  we  have  to  do  with  a 
regularly  recurring  phenomenon.  It  is  of  great  importance  for 
a  correct  judgment  of  criminality  in  Germany  to  remember 
that  those  offenders  who  have  several  former  convictions 
against  them  are  least  concerned  in  the  relapse  into  the  same 
or  similar  crimes,  a  proof  that  with  these  most  dangerous 
criminals  there  is  no  one-sided  specialization,  no  professional 
crime.  We  find  this  specialization  most  frequently  in  offenses 
against  property;  77%  of  the  thieves,  83%  of  the  swindlers, 
committed  similar  crimes  again  in  1901,  while  the  percentage 
in  assault  and  battery  was  only  66,  against  sexual  morahty  61, 
in  resistance  to  state  authorities  only  29. 

Whoever  has  once  got  deep  into  the  mire  of  criminal  life 
is  scarcely  able  to  get  on  to  firm  ground  again.  It  is  quite 
certain,  however,  that  our  penalties  are  ineffectual,  in  so  far 
as  they  are  intended  to  deter  from  relapse.  The  oftener  efficacy 
of  punishment  has  been  tried  on  an  individual,  the  less  can 
we  hope  for  success  from  this  means.  This  is  the  practical 
conclusion  that  must  be  drawn  from  the  statistics  of  relapse. 

I  must  confess  that  I  have  experienced  no  "decrease  of  the 
disquieting  impression  that  our  criminal  statistics  make  at 


§  21]    CRIMINAL  PHYSIOGNOMY  OF  THE  PRESENT    223 

first,''  nor  can  I  see  any  ground  for  such  a  decrease.  The 
statistics  show  a  tremendous  afflux  of  socially  dangerous 
persons,  which,  in  the  case  of  adults,  it  is  true,  seems  to  have 
come  to  a  standstill,  but  which,  in  the  case  of  juveniles,  the 
hope  of  our  future,  is  progressing  unceasingly ;  they  prove  that, 
probably  with  the  first,  certainly  with  the  third  or  fourth, 
conviction,  the  hope  is  destroyed  of  ever  reclaiming  the 
criminal  from  his  unfortunate  career;  finally,  they  teach 
that  the  fall  into  the  abyss  usually  takes  place  in  a  very  short 
time,  and  that  our  penal  system  is  unable  to  check  the  grow- 
ing depravity. 

The  vast  army  of  lawbreakers  lives,  more  or  less,  at  the 
expense  of  the  peaceful  citizen,  who  year  in  and  year  out  is 
called  upon  to  build  new  prisons,  workhouses,  and  peniten- 
tiaries, and  who  must  meet  the  cost  of  the  maintenance 
of  the  convicts. 

It  is  scarcely  possible  to  estimate  the  damage  that  the  indi- 
vidual suffers  through  theft  and  fraud,  arson,  assault  and 
battery,  and  sexual  crimes ;  at  any  rate  it  is  difficult  to  express 
it  in  figures.  The  attempt  must,  however,  be  made  to  gain, 
at  least,  a  superficial  survey  of  the  situation. 

In  the  year  1909,  797,112  acts  were  dealt  with  by  the  courts 
as  crimes  or  offenses.  These  acts,  whether  or  not  the  person 
suspected  of  them  were  acquitted  or  convicted,  are  a  better 
criterion  of  the  injury  done  to  legal  security  than  the  number 
of  persons  convicted,  for  every  act  involves  an  injury,  whether 
or  not  the  accused  person  was  guilty. 

These  798,000  are  in  reality  far  below  the  actual  number  of 
criminal  acts  committed.  Only  those  criminal  acts  come  before 
the  court  of  which  the  perpetrator  is  rightly  or  wrongly  thought 
to  be  a  certain  person;  the  numerous  thefts,  the  rarer  but 
so  much  more  serious  murders,  where  no  evidence  can  be 
found  on  which  to  base  criminal  proceedings,  all  these  crimes 


224 


THE  STRUGGLE  AGAINST  CRIME 


[§21 


are  lacking.  As  is  well  known,  the  idea  of  the  "continued 
act,"  that  is,  the  supposition  that  several  acts  owe  their 
origin  to  one  primary  resolution,  is  very  much  a  matter  of 
subjective  interpretation.  Wherever  the  courts  assume  a 
continued  act,  the  statistics  show,  instead  of  frequently 
numerous  individual  acts,  one  number  only.  Thus  the 
figures  given  in  Table  XL  represent  only  the  minimum  of 
damage  that  honor,  health,  and  property  sufiEered  in  1909 . 

TABLE  XL 

Convictions  in  Germany  in  1909 

(From  the  "Kriminalstatistik  des  Deutschen  Reiches,"  CCXXXVII.) 


Chimes  and  Offenses 


Number  op 
Offenses 


Violence  and  assault  on  state  officers  .    .    .    . 

Breach  of  the  peace 

Inducing  women  to  prostitution 

Indecent  assaults,  etc.,  on  children  under  14  . 

Insult 

Simple  assault  and  battery 

Aggravated  assault  and  battery 

Petit  larceny 

Petit  larceny  when  frequently  repeated  .    .    . 

Grand  larceny 

Grand  larceny  when  frequently  repeated  .    . 

Embezzlement 

Fraud 

Fraud  frequently  repeated 

Forgery , 

Malicious  mischief 

All  crimes  and  offenses  against  national  laws 


21,385 

41,085 

3,236 

8,407 

110,830 
37,622 
93,598 

115,844 
22,018 
16,862 
6,709 
46,922 
51,810 
12,535 
12,446 
30,337 

797,112 


To  characterize  the  legal  situation,  I  will  select  only  a  few 
examples.  The  thefts,  frauds,  and  embezzlements  include 
248,648  single  acts;  unfortunately  we  have  no  idea,  even 
approximately,  how  great  the  average  damage  was  in  each 
individual  case,  but  there  can  be  no  doubt  that  national 
prosperity  sustained  a  tremendous  injury  through  these 
crimes  against  property. 


§  21]    CRIMINAL  PHYSIOGNOMY  OF  THE  PRESENT   225 

It  may  be  objected  that  the  sums  embezzled  remain  in  the 
country,  and  the  amount  of  the  latter's  wealth,  therefore, 
remains  the  same,  though  a  displacement  has  occurred.  But 
it  is  by  no  means  indifferent  to  the  prosperity  of  the  people 
whether  an  industrious  business  man  is  ruined  by  a  faithless 
employee,  or  whether  the  money  taken  goes  the  usual  way 
to  the  saloon  or  to  the  prostitute.  Without  exaggeration 
it  can  surely  be  asserted  that  stolen  and  embezzled  money 
generally  serves  to  chain  the  thief  and  the  swindler  to  their 
criminal  life  with  unbreakable  fetters,  and  even,  because  it  is 
so  quickly  squandered,  artificially  to  support  the  world  of 
parasites  that  live  thereby,  the  receiver  of  stolen  goods,  the 
prostitute,  the  bookmaker,  etc. 

It  is  easier  to  measure  the  extent  of  the  damage  in  the  case 
of  sexual  crimes.  In  one  year,  8856  children  under  fourteen 
were  the  victims  of  indecent  assaults.  This  is  less  than  the 
actual  number,  for  the  court  often  treats  the  crime  as  one 
act  even  though  several  children  are  involved.  Now,  even 
though  often  no  physical  or  enduring  injury  can  be  proved, 
and  there  is  at  least  the  hope  that  the  child  may  forget  the 
occurrence,  yet  the  memory  of  this  sad  experience  remains 
with  many  children  for  life,  poisons  their  mode  of  thought, 
and  is  felt  to  be  an  ineradicable  stigma. 

Finally,  for  a  third  kind  of  crime,  I  am  able  to  give  a  fairly 
accurate  calculation  of  the  social  damage.  In  my  work 
mentioned  on  page  77  I  was  able  to  prove  that  during  two 
years  the  average  loss  of  work  of  every  person  in  Worms  who 
was  gravely  injured  in  an  assault,  amounted  to  7.3  days. 
If  we  take  this  as  a  measure  —  and  it  is  certainly  not  exag- 
gerated —  of  the  material  damage  due  to  the  serious  injuries 
in  the  year  1903,  we  obtain  tremendous  figures.  The  num- 
ber of  criminal  acts  that  actually  came  to  trial  amounted 
to  94,883;   counting  a  loss  of  7.3  days  for  each  act,  we  get 


226  THE  STRUGGLE  AGAINST  CRIME  [§21 

a  loss  of  692,645.9  days,  or,  counting  300  working  days  to  the 
year,  2308.8  years!  This  number,  then,  represents  the  actual 
loss  of  work  annually  caused  by  our  knights  of  the  blade. 

In  this  calculation  I  have  refrained  from  including  the 
insignificant  injuries,  as  well  as  tw^o  cases  of  manslaughter  and 
five  cases  of  injuries  likely  to  result  in  death.  If  we  assume  that 
such  grave  cases  are  everywhere  equally  common,  we  should 
have  365  deaths  every  year,  and  900  dangerously  wounded 
persons.  How  many  of  these  are  the  support  of  their  families? 
Would  a  woman,  whose  husband  is  brought  home  to  her 
stabbed  by  some  ruffian,  join  in  Wach's  mockery  when  he 
asks,  whether  it  is  of  any  use  "to  keep  an  incorrigible  ruffian 
in  prison  as  a  life-long  pensioner  of  the  State,  because,  if  he 
were  at  liberty,  he  might  give  someone  or  other  a  slash".'* 
Such  utterances  are  calculated  to  rouse  the  quite  unjustifiable 
feeling  that  everything  in  our  legal  state  is  sound  and  satis- 
factory. The  parents  whose  child  is  ravished,  whose  son, 
their  sole  hope,  is  crippled  for  life,  tell  another  tale.  They 
do  not  feel  that  we  are  living  in  "well-regulated,  satisfactory, 
healthy  legal  conditions." 

The  picture  that  I  have  drawn  here,  the  most  important 
points  of  which  I  have  briefly  emphasized,  is  one  of  far-reach- 
ing public  insecurity.  The  injury  done  to  social  life  year  by 
year  is  immeasurable;  there  is  scarcely  a  gleam  of  hope  for 
the  future  when  we  consider  that  for  years  the  most  important 
and  serious  crimes  have  been  steadily  increasing,  that,  above 
all,  our  juveniles,  the  hope  of  the  future,  so  early  and  un- 
reservedly embrace  crime!  "We  see  whither  we  are  steering 
unless  energetic  action  is  begun.  But  this  must  be  done  soon, 
and  it  must  be  purposefully  done. 


§  22]  PREVENTION  227 

§  22.  Prevention 

Our  consideration  of  the  menace  to  legal  security  at  the 
present  day  ended  in  a  dissonance,  which  it  is  now  for  us  to 
resolve.  Was  it,  therefore,  necessary  to  paint  present  and 
threatening  legal  conditions  so  black  .^  Does  not  such  a 
picture  produce  a  feeling  of  impotence,  that  fearfully  watches 
the  evil  approach  without  any  effort  to  ward  it  off.^*  I  think 
not.  Only  he  who  looks  clearly  into  the  future  will  find  the 
right  course  in  the  present. 

When,  some  twelve  years  ago,  the  cholera  broke  out  in 
Hamburg,  our  health  authorities  did  not  conceal  the  disease, 
as  was  done  in  many  other  countries,  did  not  represent  the 
danger  to  be  less  than  it  was;  they  announced  clearly  and 
without  reservation  what  a  dangerous  plague  threatened 
Germany,  and  with  adamantine  strictness  enforced  all  the 
measures  that  would  prevent  its  further  spread.  And  they 
were  thoroughly  successful,  as  we  know.  Thus,  it  seems  to  me 
today,  in  regard  to  present  legal  conditions,  that  the  una- 
dorned truth  is  necessary  if  we  are  really  to  hope  at  all  for  an 
improvement  in  the  unendurable  situation. 

But  the  work  of  the  health  authorities  did  not  end  with  the 
extermination  of  the  cholera.  They  sought  for  the  causes  of 
the  epidemic,  and,  by  providing  Hamburg  with  a  better  water 
supply,  permanently  protected  it  from  similar  sad  occur- 
rences. This  "prevention"  has  always  been  considered  the 
first  and  most  important  duty  of  the  physician,  and  I  know 
of  no  more  grateful  task  for  the  criminologist  and  sociologist 
than  the  prevention  of  crime. 

The  way  to  improvement  is  long  and  tedious,  but  the  goal 
no  longer  looms  so  misty  in  the  hopeless  distance.  We  know 
the  obstacles  that  separate  us  from  it.  If  all  forces  work 
together  with  a  single  purpose,  they  must  succeed  in  leveling 
the  way,  and  every  step  forward  must  be  the  starting-point 


228  THE  STRUGGLE  AGAINST  CRIME  [§22 

of  new  endeavors.  Every  measure  that  helps  to  make  the 
people  physically,  mentally,  and  economically  healthier  is  a 
weapon  in  the  struggle  against  the  world  of  crime. 

Ferri^  has  called  the  methods  used  to  prevent  crime  "penal 
substitutes."  This  is  incorrect,  for  they  are  not  intended  to 
take  the  place  of  penalties,  but  to  make  the  application  of 
the  latter  unnecessary.  These  preventive  measures  corre- 
spond to  the  duties  of  social  hygiene.  Hence  the  discussion 
of  prophylaxis  rightly  begins  with  the  chief  tasks  of  social 
hygiene,  the  struggle  against  alcohol  and  against  poor  eco- 
nomic conditions,  because  we  have  recognized  in  them  the 
causes  of  the  crimes  that  are,  on  account  of  their  frequency, 
most  important. 

If  we  could  do  away  with  the  custom  of  drinking,  the 
numerous  crimes  that  can  be  traced  to  alcohol  and  its  conse- 
quences would  be  strangled  at  birth.  Not  all  crimes,  and  not 
everywhere.  Not  all,  because  we  cannot  thus  destroy  the 
brutality  and  fighting  propensities  of  some  individuals.  Not 
everywhere,  as  we  have  seen  in  Southern  Italy,  where  the 
knife  sits  loosely  in  its  sheath,  even  when  alcohol  is  not  there 
to  give  the  impulse.  But  with  us  in  Germany  a  limitation 
of  the  present  regular  custom  of  drinking  would  be  an  infinite 
blessing  to  all  the  many  unfortunates  to  whom  a  fit  of  in- 
toxication means  lasting  ruin. 

Supposing  that  with  one  blow  we  could  do  away  with  the 
abuse  of  alcohol,  the  number  of  annual  convictions  would  be 
reduced  by  one-fifth,  with  the  omission  of  the  cases  of  aggra- 
vated assault  and  battery,  or  at  least  by  one-tenth,  if  only 
half  of  such  cases  can  be  attributed  to  alcohol.  Some  50,000 
persons  less  would  come  before  the  criminal  judge  every  year, 
apart  from  the  numerous  cases  of  simple  assault  and  battery, 
insults,  etc.,  that  can  be  traced  to  the  same  cause.  This  is 
1  Ferri,  "Criminal  Sociology,"  p.  112. 


§  22]  PREVENTION  229 

no  fantastic  vision;  it  might  almost  be  called  experimental 
experience.  In  Ireland,  Father  Mathew  ^  succeeded,  by  the 
power  of  his  personality  and  his  enthusiastic  speeches,  in 
making  total  abstainers  of  1,800,000  persons  in  the  course  of  a 
few  years.  The  result  was,  that,  whereas,  in  1838,  12,096 
serious  crimes  were  committed  in  Ireland,  in  1841  the  number 
had  sunk  to  773,  the  sixteenth  part! 

The  slight  permanence  of  this  unexampled  success  proves, 
it  is  true,  that  the  method  employed  was  not  the  right  one; 
moreover,  with  us  in  Germany,  we  can  never  expect  to  educate 
the  people  up  to  permanent  abstinence.  Less  hopeless,  how- 
ever, is  the  attempt  to  teach  the  broad  masses  how  few  of  the 
good  qualities  generally  attributed  to  alcohol  it  really  pos- 
sesses, and  how  great,  on  the  other  hand,  is  the  damage  it 
does  to  health  and  prosperity.  To  many,  the  efforts  to 
do  away  with  the  abuse  of  alcohol,  especially  to  oppose  the 
"occasional  drink,"  seem  to  be  merely  a  fad,  a  sort  of  hobby 
of  uninvited  national  philanthropists.  They  are  not  so  to  the 
man  who  has  recognized  the  relation  between  the  occasional 
drink  and  crime,  who  knows  that  the  pleasure  of  a  convivial 
evening  may  have  to  be  paid  for  by  years  of  suffering,  who 
has  seen  the  extent  of  the  injury  that  is  inflicted  on  our  na- 
tional prosperity  by  crimes  committed  while  the  criminal  is 
intoxicated. 

In  addition  to  instruction  given  to  the  people,  who  should, 
moreover,  have  the  good  example  of  the  educated  to  follow, 
other  methods  of  combating  the  custom  of  drinking  should 
also  be  used.  An  extremely  high  tax  on  spirits,  and  higher 
ones  than  at  present  on  wine  and  beer,  will  not  easily  be  ob- 
tained in  Germany.  The  "drop  of  cheer,"  and  the  "liquid 
bread,"  of  the  poor  man,  must  not  be  made  too  dear;  agri- 
culturists, too,  will  make  up  their  minds  with  difficulty  to  a 
'  Baer,  "Der  Alkoholismus,"  p.  395. 


\ 


230  THE  STRUGGLE  AGAINST  CRIME  [§22 

restriction  of  the  distillation  of  spirits.  But  the  party  that 
should  dare  in  our  Reichstag  to  demand  higher  taxes  on  all 
alcoholic  drinks  might  withstand  all  antagonistic  onslaughts, 
in  the  consciousness  of  having  thus  raised  a  powerful  dam 
against  the  destructive  stream  of  crime.  "Taxes,  and  es- 
pecially all  indirect  restrictions  on  the  production  and  sale 
\J  of  alcohol,  are  much  more  effective  measures  than  monu- 
mental prison   buildings."  ^ 

In  this  direction  much  good  may  be  expected  from  the 
suppression  of  home  distilleries  and  the  restriction  of  bar 
licenses,  as  well  as  from  the  prohibition  of  the  sale  of  spirits 
between  Saturday  noon  and  Monday,  as  it  exists  in  Norway, 
from  the  suppression  of  drinking  in  places  of  employment, 
and  from  the  payment  of  wages  in  the  middle  of  the  week. 

All  these  measures,  to  which  many  others  might  be  added, 
are  looked  upon  by  the  working  population  as  interference  in 
their  habits  of  life.  It  is  impossible  to  limit  drinking  without 
also  limiting  the  workingman's  visits  to  the  saloon,  the  only 
place  where  he,  especially  if  unmarried,  experiences  any  de- 
gree of  comfort.  To  bring  about  an  improvement  in  the  cus- 
tom of  drinking,  then,  efforts  must  begin  here.  A  place  must 
be  provided  where  workingmen,  without  drinking  and  with- 
out regarding  drinking  as  an  end  in  itself,  can  find  good  and 
cheap  food,  light,  warm,  comfortable  rooms,  and  entertain- 
ment, where  they  can  also  take  their  wives  and  children  with- 
out being  in  constant  fear  of  brawls.  Popular  reading  rooms, 
popular  concerts,  the  opening  of  the  museums  in  the  evening 
and  on  Sunday,  gymnasiums  and  halls  for  athletic  games, 
will  then,  in  conjunction  with  the  restaurants  described  above, 
breed  in  a  large,  and,  especially,  the  best  part,  of  the  working 
class  a  distaste  for  the  smoky,  noisy  saloon,  and  will  make 
the  habitual  visit  to  the  public-house  dispensable. 

^  Ferri,  he.  cit.  p.  185. 


§  22]  PREVENTION  231 

But  this  alone  will  not  relieve  the  wretchedness  of  the 
lower  classes.  Comfort  and  entertainment  to  be  found  out- 
side may,  indeed,  give  a  man  some  pleasure  in  life,  but  they 
do  not  make  his  own  home  unnecessary,  or  at  least  should  not. 
Here  the  methods  of  the  indirect  struggle  against  alcohol 
converge  with  the  efiPorts  to  provide  hygienic  dwellings, 
where,  in  the  interests  of  health,  and,  above  all,  sexual  mo- 
rality, there  shall  be  no  renting  of  beds  and  no  living  together 
of  different  families  in  small,  inadequately  ventilated  and 
furnished  rooms.  The  construction  of  small  single  houses 
instead  of  great  tenement  barracks,  the  provision  of  modest, 
but  neat  and  clean,  dwellings,  if  possible  with  little  gardens, 
will  help  to  keep  the  workingman  with  his  family,  and  will 
soon  make  his  own  home  pleasanter  to  him  than  the  public- 
house. 

The  broad  masses  of  the  people  must  be  educated  to  appre- 
ciate anew  the  value  of  family  life,  the  desire  for  knowledge 
and  higher  intellectual  pleasures  must  be  aroused  and  grati- 
fied. The  success  of  all  these  steps,  which  are  only  indirectly 
aimed  against  the  abuse  of  alcohol,  will  then,  perhaps,  be 
even  more  important  and  permanent  than  the  anti-alcoholistic 
movement  itself. 

The  fact  that  theft  is  largely  dependent  on  the  economic 
situation,  compels  us  to  turn  our  attention  to  this  question 
too;  not,  however,  in  order  to  pursue  unattainable,  foolish 
visions,  and  to  guarantee  every  man  a  certain  and  suflBcient 
income.  The  difference  in  the  human  temperament  as  re- 
gards saving,  economizing,  and  squandering  is  so  great  that 
the  artificially  leveled  inequalities  would  soon  reappear.  It 
is  impossible  to  put  an  end  to  desire;  it  is  one  of  the  quali- 
ties of  human  nature  that  is  not  satisfied  with  what  has  been 
attained,  that  is  not  bound  to  the  minimum  required  for 
existence,  but  appears  in  every  situation.    It  is  strongest,  of 


232  THE  STRUGGLE  AGAINST  CRIME  [§22 

course,  where  it  is  directed  towards  protection  from  cold  and 
the  gratification  of  the  simplest  needs  of  life. 

Here  too,  then,  we  must  apply  the  lever  to  mitigate  the 
greatest  misery.  Not  by  private  benevolence  alone,  although 
it  finds  the  widest  field  for  its  activity  just  among  the  very 
poorest  of  the  poor.  In  the  first  place,  the  State  and  the 
municipalities  must  do  their  duty.  Care  of  the  sick  and 
incurable,  regulation  of  the  aid  given  to  the  poor,  free  em- 
ployment offices,  insurance  against  disease,  accident,  and 
unemployment,  and,  in  the  country,  against  diseases  of 
cattle,  and  against  hail  and  fire,  compulsory  savings 
banks,  are  only  a  few  of  the  points  at  which  attacks  can 
be  made  to  improve  the  welfare  of  the  people  and  protect 
them  from  the  worst  misery.  In  economic  crises,  during 
which  even  industrious  workmen  lose  their  employment, 
in  times  in  which  provisions  rise  to  prohibitive  prices  or  the 
cold  is  excessive,  the  methods  mentioned  above  fail.  Then 
temporary  employment,  the  distribution  of  bread  and  coal, 
the  opening  of  stations  where  people  can  warm  themselves, 
lodgings  for  those  without  shelter,  must  all  do  their  part 
together  with  the  liberality  of  the  prosperous. 

We  cannot  exterminate  theft,  but  we  shall  save  the  best 
among  the  criminals,  the  individuals  who  are  driven  to  steal 
by  desperation  and  despair. 

The  unfortunate  position  of  the  children  who,  of  illegiti- 
mate birth  or  the  product  of  drunken  families  and  criminal 
environment,  from  their  earhest  years  fall  victims  to  mental 
and  moral  corruption,  has  always  challenged  compassion 
and  energetic  action.  It  would  be  well  if  we  could  prevent 
the  procreation  of  such  usually  physically  and  mentally 
inferior  children.  This  is  the  purpose  of  the  widely  desired 
prohibition  forbidding  epileptics,  drunkards,  confirmed  crim- 
inals, and  the  insane  to  marry.    We  cannot  expect  much  of 


§  22]  PREVENTION  233 

such  a  measure;  we  can,  indeed,  prevent  marriage,  but  not 
the  procreation  of  children,  and  precisely  in  the  lowest  strata 
of  the  people,  instead  of  the  legitimate  marriage,  illegal  sexual 
relations  would  flourish  still  more  luxuriantly.  The  time  is 
probably  still  distant  when  procreation  will  be  prevented 
by  castration,  although  this  proposal  has  already  been  made 
in  all  seriousness.^  For  the  present,  then,  our  care  must 
begin  at  the  point  where  we  see  children  growing  up  in  crim- 
inal surroundings. 

Almost  equally  menaced  are  those  children  who  are  the 
result  of  marriages  which,  in  consequence  of  extreme  poverty, 
consist  only  of  an  outward  living  together  and  the  procreation 
of,  usually,  numerous  progeny,  —  marriages  in  which  the  hus- 
band is  at  work  in  the  factory  from  early  till  late,  and  the 
mother  spends  her  times  at  the  wash-tub,  or,  as  well  as  her 
husband,  in  the  factory.  No  one  is  there  to  look  after  and 
bring  up  the  children;  at  best,  they  are  left  to  the  care  of 
some  neighbor  or  to  themselves,  but  often  enough  they  be- 
gin at  an  early  age  to  work  too,  delivering  bread  and  news- 
papers, selling  flowers  and  matches.  The  street  supple- 
ments the  events  that  take  place  before  the  eyes  of  the 
children  in  the  overcrowded  home.  Precocious,  and  with- 
out education  or  training,  the  poor  little  mortals  are  an 
easy  prey  to  the  temptations  that  surround  them  on  every 
side. 

Our  civil  code  has  left  it  to  the  national  legislation  to  pro- 
vide for  these  neglected  children.  Fortunately,  the  separate 
States  at  once  realized  the  seriousness  of  the  situation,  and 
in  quick  succession  special  laws  followed  one  another,  allowing 
State  intervention  even  before  a  child  or  a  minor  has  shown 
by  crime  that  his  training  has  failed. 

1  Naecke,  "Die  Kastration  bei  gewissen  Klassen  von  Degenerierten  als  ein 
wirksamer  sozialer  Schutz"  (Arch.  Krim.  Anthr.  Ill,  58). 


234  THE  STRUGGLE  AGAINST  CRIME  [§22 

The  Prussian  law  of  July  2,  1900,^  relating  to  the  "State 
education  of  minors"  avoids  the  expression  "compulsory  edu- 
cation," used  by  most  of  the  States,  so  that  there  shall  be 
no  danger  of  this  kind  of  education  being  regarded  as  a  sub- 
stitute for  penal  measures,  and  a  stigma  attach  to  the  child. 
This  would  be  very  unjust,  inasmuch  as  we  cannot  admit 
that  the  children  suffer  for  the  guilt  of  the  parents;  besides, 
in  many  cases,  the  neglect  is  not  due  to  the  lack  of  will  on 
the  part  of  the  parents,  but  to  their  inability  to  bring  up  the 
child  properly  because  they  are  prevented  from  doing  so  by 
disease,  absence,  and  dire  necessity. 

It  is  true  the  name  does  not  help  matters,  if  the  whole 
proceeding  is  not  rightly  carried  out.  Even  though  a  number 
of  mistakes  may  be  regarded  as  the  unavoidable  consequence 
of  the  short  time  that  the  system  has  had  in  which  to  develop, 
yet  it  cannot  be  denied  that  serious  and  experienced  observers 
say  quite  openly  that  the  State  education  law  does  not  fulfill 
the  expectations  to  which  it  gave  rise. 

Perhaps  expectations  were  too  high  in  some  respects, 
because  it  was  not  taken  into  consideration  and,  indeed, 
could  not  be  foreseen,  how  great  the  proportion  of  mentally 
inferior  children  is  who  require  this  kind  of  education. 
Among  the  children  who  were  being  given  special  edu- 
cative training  whom  Tippel  ^  examined,  he  found  66.87% 
mentally  inferior.  In  the  light  of  this  fact  it  is  interest- 
ing to  learn  that  an  oflBcial  enquiry  put  to  fourteen  insti- 
tutions harboring  544  children  called  forth  the  reply  that 
there  were  no  psychically  defective  children  among  them! 
There  can  be  no  doubt  that  the  difference  here  lies,  not  in 
the  material,  but  in  the  judgment,  which  is  explained  by  the 

^  Ludvng  Schmitz,  "Wegweiser  zum  preussischen  Fiirsorgeerziehungsge- 
setz,"  2nd  ed.,  Diisseldorf,  1901,  L.  Schwann. 

^  Tippel,  " Fiirsorgeerziehung  und  Psychiatric"  (AUg.  Zeitsch.  f.  Psych. 
LXVI.  583). 


§  22]  PREITNTION  235 

difference  in  the  special  education  of  the  persons  forming  the 
judgment.  It  is  essential,  however,  that,  if  special  State 
education  is  to  be  properly  carried  out,  the  institution  physi- 
cians and  the  superintendents  of  the  institutions  should  have 
a  preliminary  psychiatrical  education  and  some  degree  of 
psychiatrical  ability.  This  is  shown  by  Kluge's  ^  experiences; 
for  he  was  able  to  overcome  difficulties  which  would  have 
proved  insurmountable  to  the  superintendents  of  the  special 
educational  institutions. 

Unfortunately,  however,  in  addition  to  these  defects, 
there  are  many  other  things  to  be  desired  without  which  the 
success  of  the  whole  scheme  is  questionable.  Admission 
to  an  institution  must  be  more  speedily  procurable,  there 
must  be  less  red  tape  about  it,  an  individual's  ruin  must  not 
be  allowed  to  take  place  because  of  the  expense  of  preventing 
it,  the  foolishness  or  obstinacy  of  parents  must  not  be  permitted 
to  undo  at  one  blow  the  good  that  has  been  acquired  in  years 
of  training.^  There  is  still  much  to  be  improved  in  the  pro- 
ceedings that  lead  up  to  the  child's  admission  to  the  institu- 
tion, as  well  as  in  the  special  education  itself.  But,  for  the 
most  part,  the  errors  are  capable  of  correction,  and  so  we  may 
hope  that  Kohlrausch's  ^  fears  are  unfounded,  when  he  says : 
"It  is  just  the  idea  that  we  are  concerned  with  a  social  hy- 
gienic, a  preventive,  measure,  that  is  seemingly  fading  away." 

The  training  of  neglected  children  in  special  educational 
institutions  is,  of  course,  only  one  of  the  possibilities  of  pre- 
venting complete  ruin.  If  the  offspring  of  criminal  families, 
children  who  are  themselves  already  affected,  are  too  numer- 

*  Kluge,  "tJber  die  Behandlung  und  Unterbringung  psychisch  abnormer 
FUrsorgezoglinge"  (MSchrKrimPsych.  II,  232). 

*  Klumker,  "Erfahrungen  mit  der  Fiirsorgeerziehung "  (MSchrKrim- 
Psych. I,  640). 

'  Kohlrausch,  "Die  Resultate  der  Kammergerichtlichen  Rechtsprcchung 
liber  das  FUrsorgeerziehungsgesetz "  (MSchrKrimPsych.  I,  373). 


236  THE  STRUGGLE  AGAINST  CRIME  [§22 

ous  in  one  institution,  the  other  children,  who  are  still  quite 
healthy,  are  in  too  great  danger  of  psychic  infection,  and  for 
this  reason  it  has  been  decided  that  they  may  quite  properly 
be  put  in  the  care  of  suitable  families.  If  there  were  only 
enough  of  such  families!  But  we  must  not  forget  that  a 
family's  motives  in  assuming  the  care  of  a  neglected  child 
are  not  always  pure,  that  the  hope  of  gaining  another  work- 
ing member  in  the  family  often  plays  a  part. 
/  Hence  we  must  turn  to  the  existing  educational  institutions 
of  churches,  societies,  and  private  persons.  I  personally 
have  the  greatest  hopes  of  the  activity  of  those  guardians 
who  have  to  supervise  the  "natural  and  regular  growing  up 
into  social  life."  ^  When,  with  the  increased  application  of 
this  special  education,  the  circle  of  those  persons  who  are 
active  as  guardians  in  accordance  with  the  regulations  is 
growing  ever  wider,  we  shall  have  a  staff  of  helpers  who, 
with  their  interest  in  the  individual  children,  will  also  become 
interested  in  the  movement  itself  and  in  the  whole  prophy- 
laxis of  crime.    They  need  fear  no  lack  of  work. 

Here  is  the  place  to  speak  of  the  care  of  released  convicts,^ 
which  is  also  directed  towards  preventing  a  relapse  into  crime. 
It  is  often  subjected  to  a  harsh  criticism,  which  Ferri^  expresses 
in  the  words:  "It  must  not  be  forgotten  what  kind  of  an  im- 
pression this  support  of  criminals  must  make  on  the  millions 
of  honest  workmen  who  are  less  fortunate  than  the  released 
convicts."  This  view  rests  on  a  misunderstanding  of  the 
aim  in  providing  shelter  and  work.     If,  on  the  expiration 

1  Krohne,  "  Erziehungsanstalten  fiir  die  verlassene,  gefahrdete  und  ver- 
wahrloste  Jugend  in  Preussen,"  Berlin,  1901,  Carl  Heymann's  Verlag, 
p.  XXXIX. 

2  According  to  Rosenfeld  ("  Zweihundert  Jahre  Fursorge  der  preussischen 
Staatsregierung  fiir  die  entlassenen  Strafgefangenen,"  Berlin,  1905,  p.  8),  the 
oldest  "Fursorge"  decree  is  the  decree  of  Frederick  I  of  Prussia,  of  August 
28,  1710. 

^  Ferri,  "Das  Verbrechen  als  soziale  Erscheinung,"  p.  414. 


§  22]  PREVENTION  237 

of  his  sentence,  we  turn  the  released  prisoner  into  the  street, 
we  simply  deliver  him  over  to  the  mercies  of  society.  It  is 
very  difficult  for  the  released  prisoner,  alone,  often  in  a  strange 
city,  dependent  entirely  on  himself,  to  find  work;  the  money 
he  has  earned  is  soon  gone,  he  grows  hungry,  and  all  his  good 
resolutions  quickly  disappear.  Or  perhaps  he  spends  the 
money  at  once  in  drink;  then  his  reappearance  before  the 
criminal  judge  occurs  even  sooner.  "Nothing  is  more  dan- 
gerous than  the  few  holidays  after  expiated  punishment, 
which,  devoted  to  hunting  for  work  and  shelter,  lead  to 
loafing,  drinking,  and  the  forming  of  bad  acquaintanceships, 
and  make  the  released  prisoner  refractory,  rude,  and  inacces- 
sible to  good  influences."  ^ 

This  must  be  prevented.  The  prisoner  must  not  receive 
into  his  own  keeping  the  money  he  has  earned  by  his  industry; 
for  this  reason  the  term  "work  premium"  was  changed  into 
"gift  for  work."  The  money  is  not  paid  to  the  man,  but  is 
sent  to  the  societies  that  care  for  released  prisoners.  It  is 
easy  for  them  to  prevent  its  being  foolishly  wasted;  more- 
over, they  are  able,  by  procuring  tools  and  suitable  clothing, 
paying  the  arrears  of  rent  for  the  family,  etc.,  to  provide 
against  the  new  life's  being  begun  with  debts. 

The  most  important  thing,  however,  is  the  procuring  of 
work,  and  it  is  necessary  that  this  should  be  done  before  the 
prisoner  is  released,  so  that  the  seriousness  of  work  may  help 
to  sustain  him  immediately  on  his  dismissal,  and  facilitate 
his  re-entry  into  society.  The  endeavors  of  the  societies  for 
the  care  of  released  prisoners  are  not  always  crowned  with 
success.  This  is  partly  due  to  the  ways  of  the  released  pris- 
oners themselves,  and  partly  to  lack  of  energy  of  the  organs 
selected  to  do  the  work,  which  do  not  all  fulfill  their  social 
obligations  with  complete  understanding.  Many  a  released 
'  Krohne,  "Lehrbuch  der  Gefangniskunde,"  p.  281. 


V 


238  THE  STRUGGLE  AGAINST  CRIME  [§22 

criminal  might  be  brought  back  to  an  industrious,  honest  Hfe, 
if  the  way  were  made  easy  for  him  as  often  as  now  obstacles 
are  found  in  his  path.  Krohne  ^  graphically  describes  the 
struggle  of  a  criminal  for  his  civil  rehabilitation.  "It  is  really 
heartbreaking  to  watch  such  a  death  struggle,  and  if  society 
closes  its  eyes  to  it,  it  will  nevertheless  soon  be  unpleasantly 
reminded  of  it;  for  then,  like  all  convulsive  movements, 
this  struggle  makes  itself  felt  externally.  The  criminal  is 
not  dead,  he  continues  to  live  in  his  children,  in  the  young 
people  he  has  met  in  prison  and  in  lodgings.  That  is  the  crim- 
inal bacillus  that  goes  on  spreading.  By  watching  it,  society 
can  see  how  it  injures  itself  if  it  does  not  do  everything  pos- 
sible to  reclaim  the  delinquent,  or,  if  that  is  impossible,  at 
least  to  give  him  a  quiet  place  in  which  to  die,  instead  of 
affording  him  the  opportunity  of  infecting  others."  Such 
endeavors,  apparently,  benefit  only  the  criminal  who  is  helped, 
but,  in  reality,  public  security  profits  still  more. 

The  prophylaxis  of  crimes  includes  also  the  development  of 
the  police,  and  energetic  prosecution.  A  vacillating  man, 
who  knows  that  punishment  will  follow  swiftly  on  the  heels 
of  his  crime,  is  less  likely  to  fall  than  if  others'  experience 
has  shown  him  that  he  has  the  prospect  of  escaping  punish- 
ment. Though  this  may  not  be  a  highly  ethical  point  of  view, 
yet  we  cannot  aflFord  to  disdain  anything  that  will  help  us 
in  the  struggle  against  crime.  Most  demoralizing  of  all, 
are  threatened  punishments  that  exist  only  on  paper,  or  are 
but  seldom  used  in  comparison  with  the  frequency  of  the 
offense,  as,  for  instance,  criminal  abortion,  sodomy,  the  pro- 
curing of  women  for  prostitution.  They  undermine  the 
general  feeling  for  the  law  slowly  but  surely,  instead  of 
strengthening  it. 

And  strengthening  is  what  it  urgently  needs.  When  some 
1  Krohne  (Mitteilungea  der  I.  K.  V.,  VI,  567). 


§  22]  PREVENTION  239 

sensational  court  trial  is  taking  place,  some  unusually  horrible 
murder  is  committed,  some  unheard-of  swindle  is  perpetrated, 
the  indignation  of  the  whole  people  is  so  unanimous  that  we 
might  hug  ourselves  in  the  illusion  that  the  people's  feeling 
for  the  law  is  highly  developed.  Unfortunately,  however, 
it  fails  in  the  course  of  everyday  life  as  regards  minor  trans- 
gressions of  the  law.  The  "market  penny"  which  the  cook 
who  does  the  marketing  keeps  for  herself,  the  adulteration 
of  milk,  the  giving  of  short  weight,  the  whole  field  of  dis- 
honest competition,  betray  as  undeveloped  a  feeling  for  the 
law,  as  do  wrong  declarations  of  property  to  be  taxed,  and 
smuggling  goods  through  the  customs. 

The  last-named  example  shows  that  slow  improvement  is 
taking  place.  Not  many  years  ago,  in  passing  the  frontier 
into  Austria,  Italy,  or  France,  one  could  be  fairly  certain 
that,  once  over  the  border,  the  undeclared  cigars  would  be 
brought  out  from  their  hiding-places  with  a  certain  pride, 
frequently  that  elaborate  accounts  would  be  given  of  how  the 
vigilance  of  the  officials  had  been  avoided.  This  is  now  gen- 
erally recognized  as  not  respectable,  and,  though  I  believe 
that  such  smuggling  goes  on  often  enough,  yet  it  is  no  longer 
done  so  publicly  and  with  such  an  attitude  of  resisting  the 
unjustified  demands  of  the  State.  Slight  as  this  sign  is,  I 
yet  believe  it  to  be  a  symptom  of  a  finer  sense  for  justice  and 
injustice. 

The  more  sharply  our  legal  consciousness  rejects,  as  inad- 
missible, every  deviation  from  the  straight  path,  even  where 
neither  criminal  judge  nor  statute  threatens,  the  more  surely 
can  we  reckon  on  a  general  refinement  of  the  feeling  for  right. 
To  this  end,  according  to  individuality,  descent,  and  educa- 
tion, the  home  and  school,  church  and  press,  must  work  to- 
gether. If  I  mention  the  press  next  to  the  school  and  the 
church,  I  should  explain  why  I  lay  so  much  stress  upon  it. 


240  THE  STRUGGLE  AGAINST  CRIME  [§22 

Above  all,  because  it  is  harmful,  and,  in  two  directions.  The 
published  accounts  of  trials  giving,  as  is  commonly  done,  the 
names  of  those  concerned,  spread  the  name  of  the  convicted 
person  abroad,  and  thus  not  only  make  it  more  difficult  for 
him  to  regain  his  place  in  the  world,  but  also  injure  to  a  much 
greater  extent  his  relatives,  who  often  have  much  to  suffer 
from  this  source.  Moreover,  the  description  of  crimes  does 
not  exactly  serve  to  improve  morality.  I  need  only  call  to 
mind  the  Sternberg  trial,  the  details  of  which  formed  a  highly 
undesirable  subject  for  conversation. 

The  curious  phenomenon,  that  certain  unusual  deeds  of 
horror  generally  follow  one  another  at  short  intervals  in  differ- 
ent places,  may  probably  also  be  traced  to  the  —  admittedly 
unintentional  —  effect  of  the  newspaper  reports.  We  are 
concerned  here  with  a  phenomenon  of  pathological  nature. 
A  great  many  of  the  most  infamous  sexual  crimes  are  com- 
mitted by  epileptics  in  abnormal  states.  The  ideas  and  notions 
of  the  man  in  his  normal  state  often,  however,  play  a  part 
when  he  is  in  an  abnormal  condition;  thus,  his  remembrance 
of  newspaper  descriptions  of  dismembered  corpses,  ripped 
open  bodies,  arson,  and  murder,  may  turn  the  confused 
destructive  fury  of  the  epileptic  into  dangerous  channels. 
Weak-minded  persons,  too,  especially  juveniles,  may  easily 
fall  victims  to  their  desire  for  notoriety,  and  feel  themselves 
flattered  if  their  heroic  deeds  are  described  in  the  paper, 
possibly  even  their  picture  printed  in  the  so-called  "pohce 
journals." 

It  is  clear  that  the  press  can  do  a  great  deal  of  harm  in  this 
way;  also,  the  knowledge  that  stabbing,  swindling,  sexual 
crimes,  take  place  daily  gradually  makes  the  people  apathetic, 
so  that  a  crime  must  be  particularly  sensational  to  arouse 
their  indignation. 

It  should  be  the  duty  of  the  press  to  point  out  to  society 


§  23]  RESPONSIBILITY  241 

its  share  of  guilt  in  the  crime,  and  so  to  fe*rouse  everyone's 
conscience  that  he  reahzes  what  he  owes  to  society  at  large. 
When,  in  times  of  financial  panic  and  bank  failures,  public 
indignation  stones  the  guilty,  it  should  be  made  clear  that 
the  desire  of  each  individual  for  the  abundant  profits  of  cer- 
tain commercial  papers  is  also  to  blame  for  the  wild  specu- 
lations of  the  bank  directors.  At  the  time  that  an  unfor- 
tunate ending  of  a  drinking  bout  cost  an  officer  his  life, 
it  would  have  been  the  duty  of  the  press  not  to  condemn  so 
much  this  particular  case  as  the  general  custom  of  drinking, 
that  daily  demands  victims,  though  not  under  such  tragic 
circumstances. 

The  press  is  such  an  efficient  instrument  for  developing 
the  feeling  for  justice  because  it  can  gain  its  effect  by  contin- 
ual repetition  without  being  monotonous.  The  influence  of 
the  school,  unfortunately,  ceases  too  early,  and  those  persons 
who  most  need  religious  influences  are  often  the  very  ones  that 
hold  themselves  aloof  from  them.  Nevertheless,  it  would  be 
very  regrettable  if  all  these  factors  should  not  work  together 
harmoniously  to  the  same  end. 

§  23.  Responsibility 

Our  legislation  is  built  up  on  the  basis  of  the  doctrine  of 
the  free  determination  of  will.  "The  right  of  the  state"  — 
so  says  the  draught  of  a  penal  code  for  the  North  German 
Federation  —  "not  only  to  adopt  measures  of  security 
against  the  criminal,  but  to  punish  him,  rests  on  the  general 
human  opinion  that  the  mature  and  mentally  sound  man 
has  sufficient  will  power  to  repress  impulses  to  criminal  acts, 
and  to  act  in  accordance  with  the  general  consciousness  of 
right."  It  is  not  my  t^sk  to  discuss  here,  at  length,  the  inex- 
haustible theme  of  free  will,  but  I  cannot  pass  it  by  entirely, 
as  long  as  eminent  criminologists  continue  to  hold  to   that 


242  THE  STRUGGLE  AGAINST  CRIME  [§23 

doctrine  as  the  "basis  of  criminal  law,"  ^  and,  indeed,  to 
adhere  to  the  extreme  form,  entirely  unlimited  freedom  of 
the  will. 

The  discussion  about  the  freedom  of  the  will  is  always  carried 
on  in  a  somewhat  irritated  key,  as  are  all  arguments  about 
questions  of  faith  and  perception.  While  Schopenhauer, 
for  instance,  treats  the  adherents  of  free  will  as  "superficially 
thinking  minds,"  in  another  quarter  it  is  more  the  moral 
qualification  of  the  determinists  that  is  doubted.  The  Bava- 
rian Minister  of  Public  Worship,  von  Landmann,  in  his 
opening  speech  at  the  third  International  Psychological 
Congress,  in  Munich,  in  1896,  felt  himseK  constrained  to 
say,  with  unmistakable  reference  to  von  Liszt's  address  on 
"Responsibility  in  Criminal  Law":^  "I  hope  that  the  psy- 
chological congresses  will  aid  in  allaying  the  great  danger  to 
the  public  life  of  the  cultured  nations  which  might  arise  from 
certain  psychological  theories,  and  I  am  confident  that  these 
congresses  will  not  shake,  but  rather  re-enforce,  the  old  belief 
in  a  man's  responsibility  for  his  acts." 

Disputed  scientific  questions  cannot  be  decided  with  pas- 
sion. As  we  see  that  a  number  of  our  most  eminent  thinkers 
adhere  to  the  doctrine  of  free  will,  Schopenhauer's  view  seems 
to  me  to  be  as  unjustified  as  the  opposite  attack  of  those  who 
fear  that  the  relinquishing  of  free  will  will  mean  the  collapse  of 
ethics  and  morals,  law  and  society.  State  and  church.  They 
forget  that  St.  Augustine  ^  and  Luther  denied  the  doctrine 
of  free  will. 

We  shall  see  that,  with  the  deterministic  \dew,  it  is  still 

1  Birkmeyer,  "  Gedanken  zur  bevorstehenden  Reform  der  deutschen  Straf- 
gesetzgebung"  (Archiv  fiir  Strafrecht,  XL VIII,  67). 

^  "'Dritter  intemationaler  Kongress  fiir  Psychologic,"  Munich,  1897,  J.  F. 
Lehmann,  p.  18. 

'  Petersen,  "  Willensfreiheit,  Mord  und  Straff reiheit,"  Munich,  1905,  J.  F. 
Lehmann,  p.  14. 


§  23]  RESPONSIBILITY  243 

possible  to  maintain  the  responsibility  of  a  man  for  his  acts, 
—  though  from  an  entirely  different  standpoint,  it  is  true. 

The  standpoint  of  the  natural  sciences,  and  this  is  the  only 
one  I  can  represent  here,  varies  considerably  from  "general 
human  opinion."  We  must  hold  fast  to  the  fact  that  an  effect 
can  take  place  only  if  it  is  preceded  by  a  cause.  Consequently 
the  phenomena  which  we  call  acts  of  will  must  be  preceded 
by  a  causal  activity.  This  activity  goes  on  in  our  brain, 
hence  is  dependent  on  the  latter's  condition. 

A  "free  will"  that  acts  without  cause,  or,  more  comprehen- 
sibly, without  motive,  does  not  exist.  To  be  sure,  it  cannot 
be  denied  that  the  weighing  of  the  motives  for  and  against, 
and  the  final  decision,  are  bound  up  with  a  feeling  that  may 
easily  give  the  observer  the  illusion  of  "free  will."  And  the 
more  easily  and  clearly  is  this  illusion  produced,  the  less 
careful  the  observer  is  in  the  analysis  of  the  processes  of  his 
consciousness.  And  yet  the  recognition  of  the  law  of  caus- 
ality compels  us  to  give  up  this  illusion,  flattering  as  it  is  to 
self-love  and  conceit.  The  supposition  that  acts  can  be 
caused  by  a  will  that  is  entirely  beyond  and  removed  from 
motives,  would  lead  to  the  most  fantastic  consequences. 
"What  would  become  of  this  world  if  necessity  did  not  run 
through  all  things  and  hold  them  together?  A  monstrosity, 
a  pile  of  debris,  a  distorted  visage  without  sense  or  meaning  — 
the  work,  namely,  of  true  and  pure  chance."  ^ 

Every  act  is  the  necessary  final  result  of  the  effect  of  a 
series  of  motives  on  a  certain  character.  We  are  far  from 
being  able  to  view  this  origin  and  development  in  its  whole 
course.  But,  just  because  we  are  affected  by  a  number  of 
motives  which  we  do  not  know,  which,  perhaps,  practiced 
introspection   may   lead   us    merely   to   suspect,    we   should 

*  Schopenhauer,  "tlber  die  Freiheit  des  menschlichen  Willens,"  Leipzig, 
Philipp  Reclam,  III,  p.  44L 


244  THE  STRUGGLE  AGAINST  CRIME  [§23 

beware  of  applying  to  others  the  thoroughly  subjective 
measure  which  we  gain  by,  ourselves,  measuring  our  own 
thought,  and  of  trusting  our  own  decision  too  confidently. 

The  reaction  to  an  outward  or  inward  irritant  is  extremely 
different.  It  is  dependent  on  individual  character.  But  is 
it  true  that  the  character  is  not  "something  given  or  even 
forced  upon  the  individual  by  causalities,  but  a  peculiarity 
freely  acquired  by  everyone,  of  his  own  knowledge,  judgment, 
and  choice,  the  product  of  free  will  in  the  education  of  self".''  ^ 
These  words  bear  witness  to  a  tremendous  underestimation 
of  the  natural  disposition  given  to  the  individual,  and  existing 
at  birth.  Externally,  intelligence  is  the  factor  in  natural 
disposition  that  is  most  striking,  and  consequently  it  is  often 
pushed  too  far  into  the  foreground.  The  ability  to  experience 
and  to  assimilate  can  be  measured  by  a  fairly  high  degree 
of  reliability.  We  are  not  so  clear  about  the  part  played  by 
the  emotions ;  ^  even  if  we  do  not  agree  with  Wundt  in  making, 
in  every  case,  the  emotion  the  starting  point  of  the  act  of  will, 
we  must  not  underestimate  its  influence  on  the  single  act 
and  on  the  formation  of  the  character.  The  intensity  of 
emotional  feelings  is  certainly  a  quality  that  can  be  much 
changed  by  education  and  experience,  but,  just  as  certainly, 
it  is  not  always  thus  changed.  The  intellect  is  far  more  easily 
affected  by  experience,  and  is  influenced  by  environment  and 
schooling,  example  and  instruction.  At  a  definite  moment, 
however,  that  is,  at  the  time  of  the  crime,  the  character  of  a 
man  exists  as  a  complete  and  finished  one,  not  to  be  changed 
until  after,  or  except  by,  the  eventual  decision.  At  this 
moment,  then,  a  "free"  alteration  of  character  is  no  longer 


^  Ortloff,  "Die  Vermindening  der  Willensfreiheit  im  Determinismus" 
(Zeitschr.  f.  d.  ges.  Strafrechtswissenschaft,  XII,  p.  327). 

2  Hoche,  "Die  Freiheit  des  Willens  vom  Standpimkte  der  Psychopatholo- 
gie,"  Wiesbaden,  1902,  J.  F.  Bergmann,  p.  14. 


§  23]  RESPONSIBILITY  245 

possible,  the  act  takes  place  as  the  necessary  result  of  the  out- 
ward and  inward  motives,  working  on  the  existing  character. 

Having  established  this,  we  must  not  pause,  but  must  ask, 
further,  how  is  a  character  formed?  We  may  leave  the  fact 
aside,  that  environment,  family,  instruction,  religious,  social, 
and  ethnological  influences,  certainly  cannot  be  freely  formed 
by  the  individual  according  to  his  desire.  But  we  ask  in  vain, 
why  do  the  thoughts  and  feelings  of  the  one  individual  cling 
mainly  and  enduringly  to  ethically  good,  altruistic  ideas, 
while  the  same  ideas  rebound  ineffectively  from  the  mind  of 
another  .f*  Let  us  try,  without  prejudice  and  with  the  greatest 
possible  objectivity,  to  follow  the  character  development  of 
an  individual  backwards  to  the  point  at  which  a  "willing" 
of  the  character  is  possible.  By  doing  this,  we  find  ourselves 
at  our  point  of  departure;  we  must  halt  at  the  natural  dis- 
position, intellectual  and  emotional,  and  confess  that  the 
development  of  character  also  is  not  a  product  of  free  will. 
Whether  we,  then,  ascribe  the  final  result  more  to  the  inade- 
quate organization  or  to  wrong  development,  is  indifferent 
to  the  fact:  a  man  cannot  form  his  character  as  he  desires. 

If  penal  acts  do  not  appear  as  the  expression  of  free  will, 
but  as  the  result  of  complicated  processes,  which  are  depend- 
ent on  the  organization  and  development  of  the  brain,  on 
intelligence,  experience,  and  emotional  excitability,  on 
the  one  hand,  and,  on  the  other,  on  external  conditions,  — 
what  right  have  we  to  make  a  criminal  responsible  for  his 
acts? 

Study  of  the  world  of  nature  shows  that  every  organism 
responds  to  stimuli  of  sufficient  strength.  Reactions  take 
place  especially  in  response  to  irritations  which  threaten  the 
existence  of  the  individual.  The  motive  of  every  defense 
against  attack  is  personal  well-being  and  self-preservation. 
Thus  the  single  cell  resists  attack,  as  does  every  animal. 


246  THE  STRUGGLE  AGAINST  CRIME  [§23 

including  man;  hence  the  original  form  of  the  development 
of  punishment  was  simple  defense.  We  can  still  see  that 
today  in  races  on  a  low  plane  of  culture. 

A  later  development  is  the  reaction  that  does  not  take 
place  at  the  moment,  but  is  delayed  and  appears  as  revenge. 
Both  forms,  the  direct  as  well  as  the  delayed,  the  defensive 
and  the  revengeful,  function  confront  us  on  two  planes,  of 
which  the  lower,  the  individual,  progresses  to  the  social. 
The  defense  and  revenge  of  the  attacked  individual  easily 
exceeds  the  limits  of  the  necessary,  and  thus  gives  rise  to 
new  counter-reactions;  a  typical  example  is  blood- ven- 
geance, which  led  to  the  complete  extermination  of  whole 
families. 

When  a  larger  organism,  that  is,  the  tribe  or  the  State, 
takes  over  the  oJEce  of  defense,  a  more  practical  estimation 
of  the  reaction  necessary  to  a  certain  attack  is  arrived  at. 
Those  persons  who  were  at  the  head  of  such  an  organism 
undertook  the  decision  in  difficult  cases  and  provided,  on 
behalf  of  the  tribe  or  State,  for  the  execution  of  the  reaction. 

A  new  element  was  introduced  by  the  priests:  "In  their 
hands,"  writes  Ferri,^  "what  was  originally  individual  or 
tribal  revenge  assumed  the  character  of  divine  revenge,  and, 
from  a  purely  defensive  function,  came  to  be  a  moral  and 
rehgious  one.  The  consequence  was  that,  as  in  all  ecclesi- 
astical, religious  formations,  a  strict  formalism  and  a  mystical 
idea  of  expiation  made  themselves  felt." 

With  the  development  of  the  State,  the  judicial  power  once 
more  slipped  from  the  priests'  grasp  into  the  hands  of  laymen, 
but  the  idea  of  expiation  was  retained;  the  penal  power  repre- 
sented simply  a  retributive  measure.  This  principle,  which 
was  not  originally  inherent  in  punishment,  cannot  be  carried 
out,  as  will  be  shown,  and  the  criminal  codes,  too,  that  are 
'  Loc.  cit.  p.  156. 


§  23]  RESPONSIBILITY  247 

built  up  on  it  are  full  of  inadequacies,  compromises  with  other 
views,  and  contradictions. 

We  cannot  do  without  the  defensive  response  to  attacks. 
Both  the  individual  and  the  totality  of  persons  that  we  know 
as  the  State  and  society,  require  protection  for  their  existence. 
Thus,  quite  apart  from  all  the  alien  elements  of  the  original 
defensive  reaction,  we  still,  from  an  entirely  different  point 
of  view,  come  to  maintain  the  responsibility  of  the  attacker. 
I  agree  with  Ferri:  "The  natural  foundation  and  the  funda- 
mental principle  of  the  repression  of  crimes  exists  solely  in 
the  necessity  for  self-preservation,  which  applies  to  every 
individual  and  every  social  organism." 

From  this  standpoint,  which  sees  in  crime  only  the  injury 
to  society,  and  in  punishment  only  the  necessary  social  re- 
action against  it,  the  struggle  against  criminals  must  be 
carried  on.  We  thus  depart  from  the  moral,  and  in  its  place 
set  up  the  social,  responsibility.  This  is  not  so  strange  to  our 
legislation  as  it  appears.  In  the  case  of  minors,  and  juveniles 
acquitted  because  of  lack  of  comprehension,  our  penal  law 
provides  a  compulsory  education,  lasting  for  years,  even 
when  the  offense  is  harmless,  and  although  the  person  who 
committed  it  is  not  regarded  as  accountable.  Still  clearer 
is  this  social  reaction  in  the  case  of  beggars  and  prostitutes. 
Prostitutes  who  frequently  offend  against  the  police  regu- 
lations, who,  for  instance,  pass  through  certain  forbidden 
streets,  show  themselves  after  sunset,  etc.,  are  committed 
to  the  workhouse  for  one  or  two  years.  It  is  the  same  with 
beggars  and  tramps  who  are  repeatedly  found  without  work 
and  shelter.  The  effect  of  this  regulation  can  only  be  measured 
by  the  fact,  that  the  average  penalty  imposed  for  indecent 
assaults  on  juveniles  is  about  one  to  one  and  a  half  years. 
Now,  if  the  vagabond  who  is  afraid  of  work,  and  the  prosti- 
tute, are  sent  to  the  workhouse  for  one  or  two  years,  it  cannot 


248  THE  STRUGGLE  AGAINST  CRIME  [§  23 

be  that  this  course  is  dictated  by  moral  indignation  about 
their  offense;  it  must  be  explained  as  the  State's  method  of 
defending  itself  against  these  parasites. 

The  necessity  for  protecting  society  has  also  caused  the 
State  to  intervene,  even  where  sympathy  with  a  psychic 
disease  restrains  all  feeling  of  disapproval.  The  lunatic, 
whose  mad  ideas  menace  pubUc  safety,  is  taken  care  of  in  an 
insane  asylum,  even  if,  because  he  entirely  fails  to  realize  his 
condition,  he  feels  this,  often  life-long,  confinement,  to  be  cruel 
in  the  extreme.  Though  he  may  excite  our  deepest  pity,  yet 
no  one  would  feel  his  confinement  to  be  inadmissible.  Recently 
our  legislation  has  gone  even  a  step  farther.  The  insane  per- 
son who  sets  fire  to  a  house  is  not,  indeed,  convicted  of  arson, 
but,  according  to  §  829  of  the  Civil  Code,  he  is  obliged  to 
be  kept  harmless  "as  equity  requires."  Although  this  belongs 
in  quite  another  field,  that  of  the  civil  law,  it  nevertheless 
proves  that  the  social  responsibility  of  a  person  who  is  irrespon- 
sible in  criminal  law  is  not  incompatible  with  our  legal  views. 

Many  people  have  come  to  regard  the  giving  up  of  free 
will  as  identical  with  the  giving  up  of  the  feeling  of  responsi- 
bility. But  this  does  not  correspond  to  the  general  feeling. 
"With  or  without  the  belief  in  free  will,  unpleasant  feelings 
arise  in  me,  if  I  belong  to  the  normal  majority,  as  soon  as 
my  behavior  departs  from  the  course  that  I  feel,  with  subjec- 
tive certainty,  to  be  the  right  one;  and  this  stirring  of  con- 
science guides  me,  whether  I  believe  the  conscience  to  be  the 
indicator  of  an  intelligible  character  or  not.  I  feel  myself 
to  be  the  perpetrator  of  my  deeds  and  must  be  accountable 
for  them;  this  feeling  of  responsibility  is  not  changed  in  the 
least  by  my  scientific  con\dction  that  the  nature  of  this  feeling 
too  is  necessarily  determined."  ^ 

'^  Hoche,  "Die  Freiheit  des  Willens  vom  Standpunkte  der  Psychopatholo- 
gie,"  Wiesbaden,  1902,  J.  F.  Bergmann. 


§  23]  RESPONSIBILITY  249 

This  feeling  of  responsibility  dominates  the  normal  man,  — 
in  fact,  as  Hoche  and  Mohr  ^  have  proved,  it  is  not  always 
lacking  in  the  insane,  whom  even  the  most  fanatical  indeter- 
minist  would  deny  free  will.  From  this,  we  may  conclude  that 
there  is  nothing  antagonistic  to  our  feeling  when  the  State 
presumes  to  hold  us  responsible  for  our  acts.  One  thing,  how- 
ever, must  be  admitted,  if  we  no  longer  regard  character  as 
the  work  of  our  will,  and  that  is,  that  our  feeling  for  the  evil- 
doer should  be  rather  one  of  pity  than  of  moral  indignation, 
a  view  that  our  own  self-approbation  often  makes  it  difficult 
to  take. 

And  that  is  the  only  point  in  which  we  differ  from  the  mor- 
alists and  the  representatives  of  free  will.  We,  too,  certainly 
do  not  wish  to  allow  the  criminal  to  follow  his  criminal  ten- 
dencies unmolested,  we  too  desire  an  energetic  reaction  against 
the  disturbers  of  the  legal  peace.  If  a  feehng  of  compassion 
runs  through  all  our  measures,  it  can  yet  exercise  an  influence 
only  in  so  far  as  the  interests  of  the  individual  can  be  combined 
with  those  of  society,  but  never  further. 

This  compassion,  however,  must  never  degenerate  into 
weakness.  More  important  than  the  right  of  the  individual, 
is  the  right  of  the  totality;  whoever  injures  it,  must  suffer 
in  consequence.  And,  just  as  pity  does  not  prevent  our 
removing  the  insane  from  society,  just  as  we  protect  the  com- 
munity from  the  infection  of  leprosy,  so  too  our  course,  as 
regards  the  socially  dangerous,  must  be  dictated  by  this  point 
of  view:  the  protection  of  our  health,  our  honor,  our  property. 
But  will  it  be  possible  to  go  on  building  on  this  basis  .^  That 
experience  alone  will  show. 

To  disarm  an  important  criticism  at  the  outset:  we  do  not 
demand  that  a  new  criminal  law  shall  be  draughted  at  once, 

1  Mohr,  "  Willensf reiheit  und  Psychopathologie  "  (MSchrKriml'sych.  I, 
7SS). 


250  THE  STRUGGLE  AGAINST  CRIME  [§24 

which  shall  throw  overboard  everything  that  at  present  exists, 
but  we  do  demand  that  people  shall  not  cling  to  the  old  with 
persistent  prejudice  merely  because  it  is  old.  Experience 
teaches  us  that  great  revolutions  are  slow  in  taking  place, 
that  the  enthusiasm  of  the  advocates  of  the  new  finds  its 
natural  corrective  in  the  conservatism  of  the  adherents  of 
the  old,  —  and  this  is  well.  For  then  the  way  to  improvement 
is  gained  step  by  step,  and  every  advance  rests  on  a  sure 
foundation. 

§  24.  The  Purpose  of  Punishmeiit 

The  makers  of  our  criminal  laws  have  avoided  setting  up  a 
definite  theory  about  the  foundation  and  nature  of  punish- 
ment. Science,  therefore,  has  tried  the  more  eagerly  to  find 
one.  But  "it  must  be  affirmed  that  no  uniform,  generally 
recognized,  and  universal  theory  of  punishment,  for  all  ages 
and  peoples,  exists."  ^  And  yet,  neither  the  theorist,  the  judge, 
nor  certainly  the  legislator,  and,  least  of  all,  the  official  in 
whose  hands  lies  the  carrying  out  of  the  sentence,  can  do  with- 
out one.  He  must  know  what  he  is  to  do  with  the  delinquent. 
The  present  state  of  the  matter  is  theoretically  this:  the  judge 
pronounces  a  sentence  of  definite  duration,  and  delivers  the 
delinquent  up  that  the  sentence  may  be  executed;  that  is 
the  end  of  the  case,  as  far  as  the  judge  is  concerned.  He  has 
nothing  to  do  with  the  way  in  which  the  sentence  is  executed. 
Many  judges  have  perhaps  heard  lectures  on  prisons  and 
prison  discipline,  but  there  are  numbers  who  have  never 
visited  a  prison,  and  very  few  who  have  a  clear  idea  of  the 
execution  of  the  sentence. 

Krohne,  who  is  most  intimately  familiar  with  the  way  in 
which  penalties  are  carried  out,  is  moved  by  his  experience  to 

'  Fon  HoZizCTidor^,  "Die  rechtlichen  Prinzipien  des  Strafvollzugs.  Hand- 
buch  des  Gefangniswesens."     Hamburg,  1888,  I,  p.  384. 


§24]  THE  PURPOSE  OF  PUNISHMENT  251 

exclaim:  "Even  if  you  have  the  best  law,  the  best  judge, 
the  best  sentence,  and  the  prison  official  is  not  efficient, 
you  might  as  well  throw  the  statute  into  the  waste  basket  and 
burn  the  sentence!"  ^  Not  from  the  law,  then,  may  we  ex- 
pect an  improvement  in  legal  security,  but  from  the  execu- 
tion of  the  punishment.  There  hes  the  centre  of  gravity  of 
the  struggle  against  crime. 

As,  in  von  Holtzendorff's  opinion,  there  can  hardly  be  three 
eminent  teachers  of  the  law  in  Germany  who  are  completely 
agreed  as  to  the  final  formula  of  criminal  law,  it  cannot 
possibly  be  the  duty  of  the  physician  to  take  a  stand  as 
regards  all  the  existing  theories,  an  attitude  which  merely 
ends  in  his  setting  up  a  new  one.  Only  the  most  important 
points  of  view  must  be  mentioned.  Von  Holtzendorff  assumes 
that  every  offense  produces  three  effects,  and  that  popular 
feeling  demands  of  punishment  three  purposes  that  shall 
correspond  to  these  three  effects:  a.  The  effect  of  anger  and 
of  the  feeling  of  revenge;  the  penalty  acts  as  satisfaction  or 
as  expiation;  h.  the  effect  of  fear  produced  in  those  persons 
who  have  not  been  injured;  the  purpose  of  the  punishment  is 
deterrence,  deterrence  of  the  evil-doer  as  special  prevention, 
deterrence  of  all  the  dubious  elements  in  the  people  as  general 
prevention;  c.  the  effect  of  sympathy  with  the  criminal, 
who  is  tortured  by  remorse,  or  has  been  rendered  innocuous, 
or  has  been  physically  overpowered;  the  suffering  of  the 
penalty  is  intended  to  lead  to  improvement. 

The  idea  of  expiation,  of  retribution,  corresponds  roughly 
in  its  meaning  to  "an  eye  for  an  eye^"  ^  to  the  measuring  of  the 
punishment  by  the  greatness  of  the  objective  guilt.    Schmidt ' 

»  Mitteilungen  der  I.  K.  V..  VI,  364. 

*  Birkmeyer,  loc.  cit.  Note  60. 

*  Richard  Schmidt,  "Die  Aufgaben  der  Strafrechtapflege,"  Leipzig,  1895, 
p.  286. 


252  THE  STRUGGLE  AGAINST  CRIME  [§24 

quotes  Anselm  Feuerbach's  pathetic  words:  "It  may  be  of 
advantage  to  the  State  to  spare  certain  criminals!  Chance 
causes  may  move  a  man  to  crime;  he  only  needs  to  be  warned, 
to  be  disciplined,  and  he  will  be  the  most  upright  citizen. 
If  he  falls  under  the  penalty  of  the  law,  he  is  lost  forever,  and 
thus  the  State  is  deprived  of  a  useful,  perhaps  necessary, 
member.  But  it  is  still  more  advantageous  to  the  State  for 
justice  to  show  itself  to  be  inflexible,  that  it  should  not  be 
bent  to  secure  chance  advantages,  thus  undermining  the 
authority  of  the  laws  and  making  a  childish  toy  of  the  threat 
of  punishment."  This  is  the  point  of  view  of  the  words: 
fiat  justitia,  pereat  mundus." 

The  adherents  of  this  view  are  probably  few  in  number. 
They,  like  Schmidt,  point  to  the  legal  consciousness,  and  the 
people's  feeling  for  justice,  as  a  proof  of  the  necessity  of  adapt- 
ing the  punishment  to  the  social  significance  of  the  offense. 
It  will  readily  occur  to  us  all,  however,  how  often  the  feeling 
of  the  people  fails  to  agree  with  that  of  the  judge.  I  merely 
wish  to  touch  on  a  few  points  on  which  the  average  judgment 
of  the  people  differs  from  that  of  the  law:  popular  judgment 
does  not  understand  why  the  unsuccessful  attempt  should 
remain  unpunished,  why  an  accessory  to  a  criminal  act, 
the  actual  perpetrator  of  which  is  acquitted  on  the  ground 
of  insanity,  should  be  allowed  to  go  free;  in  fact,  the  feeling 
of  revenge  even  demands  that  an  insane  person  shall  be  pun- 
ished, if  his  act  is  one  that  particularly  excites  popular  passion; 
we  see  this  in  the  convictions  of  insane  persons  by  juries  and, 
occasionally,  by  judges,  when  they  disregard  the  unanimous 
reports  of  alienists.  Such  wide  disagreements  between  popular 
feeling  and  the  laws  as  were  seen  in  the  case  of  larceny  of 
electricity  need  not  be  considered,  because  the  differences  there 
can  easily  be  remedied  by  suitable  supplementation  and  ex- 
planation of  the  sections  of  the  statute. 


§24]  THE  PURPOSE  OF  PUNISHMENT  253 

The  appeal  to  the  legal  consciousness  of  the  people  also 
fails  in  the  case  of  such  excrescences  as  witch  trials  and  the 
excesses  of  the  Commune.  But  if  the  people,  with  their 
naive,  often  short-sighted  and  one-sided  feelings,  are  headed 
in  the  wrong  direction,  it  is  the  duty  of  science  to  correct  and 
enlighten  them. 

But  many  of  the  most  important  fundamental  principles 
of  our  criminal  law  are  incompatible  with  the  theory  of  retri- 
bution, which  demands  a  punishment  equal  to  the  objective 
guilt:  such  are,  for  instance,  the  heavier  penalty  for  the  re- 
cidivist, extenuating  circumstances,  the  statute  of  limitations, 
conditional  release  during  the  carrying  out  of  the  sentence, 
the  lighter  punishment  of  juveniles,  the  curtailment  of  the 
accumulated  penalties  when  an  offender  is  sentenced  at  the 
same  time  for  several  offenses,  a  system  which  Ferri  harshly 
but  not  incorrectly  describes  as  "selling  at  the  wholesale 
price."  All  these  things  are  the  result  of  the  consideration 
of  the  subjective  guilt  of  the  perpetrator,  in  addition  to  the 
objective  injury  to  legal  values.  The  modern  representatives 
of  the  theory  of  retribution  also  desire  to  do  this;  for,  "if 
the  punishment  is  to  be  entirely  proportionate  to  the  guilt, 
it  must  take  the  guilt,  not  only  as  it  is  objectively  embodied 
in  the  crime,  but  also  in  its  subjective  source  in  the  mind  of 
the  criminal,  in  his  motives,  and  in  his  attitude  before  and 
after  the  deed,  more  fully  into  account."  ^ 

The  judge  is  thus  confronted  by  one  of  the  most  difficult 
tasks  conceivable,  one  that  is  frequently  impossible,  the  finding 
of  a  formula  that  unites  the  subjective  and  the  objective  guilt. 
The  solution  of  this  difficulty  is  above  all,  impossible  when  the 
success  of  an  act  is  either  greater  or  less  than  was  intended. 
In  the  case  of  an  attempted  murder  which  fails  because  the 
murderer  does  not  use  the  poison  properly  or  miscalculates 
^  Birkmeyer,  loc.  cit.  p.  67. 


254  THE  STRUGGLE  AGAINST  CRIME  [§24 

the  range  of  a  revolver,  when  an  attempt  at  arson  fails  be- 
cause the  offender  did  not  notice  that  the  hay  was  wet,  when  a 
burglar  opens  an  empty  safe,  —  in  all  the  mere  attempts  at 
crime,  —  the  damage  done  is  often  slight  or  entirely  lacking, 
while  the  subjective  guilt  often  stamps  the  act  as  particularly 
dangerous  in  the  sense  of  retributive  justice.  The  opposite 
is  the  case  with  liability  for  the  consequences  which  makes 
a  man  answerable  for  events  of  which  he  has  been  the  cause 
in  a  slight  degree  only.  If  a  fight  leads  to  the  death  of  one  of 
the  participants,  not  because  he  was  seriously  injured,  but 
because  he  did  not  take  care  of  a  harmless  scratch  and  died 
of  the  blood  poisoning  that  ensued,  his  death  is  laid  at  the 
door  of  the  man  he  fought  with.  The  same  is  true  of  the 
student  whose  opponent  neglects  a  slight  sword-cut,  of  the 
pedestrian  whose  falling  match  causes  a  fire  in  which  people 
perish.  What  determines  the  amount  of  guilt?  The  result, 
the  subjective  guilt,  the  general  make-up  of  the  offender? 

We  find  ourselves  entirely  at  sea  as  soon  as  we  —  still  led 
by  the  fiction  of  a  just  retribution  —  attempt  to  consider  the 
individuality  of  the  offender.  Birkmeyer,  who  considers  the 
reform  of  the  criminal  law  possible  only  from  the  point  of 
view  of  the  idea  of  retribution,  and  may,  therefore,  be  con- 
sidered a  typical  representative  of  this  school,  goes  so  far  as  to 
demand,  with  von  Weinrich,  that:  "The  judge  should  know 
more  about  the  personal  circumstances  of  the  accused,  that 
he  may  be  able  to  weigh  rightly  the  degree  of  his  guilt. 
He  must  know  whether,  besides  the  accused  himself,  his 
parents  or  nearest  relatives  have  ever  been  convicted  of  seri- 
ous crimes,  whether  they  were  intemperate,  whether  mental 
disease  is  hereditary  in  the  family,  —  moreover,  what  has 
been  the  training  and  education  of  the  accused,  the  course  of 
his  life  hitherto,  at  least  its  main  events,  his  family  circum- 
stances, his  occupation,  with  what  persons  he  associates  and 


§24]  THE  PURPOSE  OF  PUNISHMENT  255 

what  his  other  social  relations  are,  and  all  this  he  must  know 
more  accurately  than  is  at  present  usual."  ^ 

I  must  confess  that  I  do  not  see  what  vestige  of  a  "just 
retribution"  can  remain  if  the  judge  penetrates  into  the  deep- 
est causes  of  a  criminal  act  to  the  extent  Birkmeyer  demands. 
The  sad  picture  of  the  child  that  has  absorbed,  almost  with 
its  mother's  milk,  contempt  for  everything  that  others  revere, 
that,  neglected  and  callous,  has  reached  the  age  when  it  can 
feel  the  severity  of  the  law,  will  rather  arouse  in  the  judge  a 
feeling  of  compassion  than  one  of  indignation.  And  when  he, 
further,  takes  into  consideration  the  external  circumstances 
that  have  deprived  the  weakling  of  his  last  moral  support, 
then,  indeed,  it  will  be  difficult  for  him  to  decide  who  bears 
the  greater  guilt,  the  individual  or  society.  The  more  seriously 
the  judge  enters  into  his  task,  the  wider  will  be  the  circle  of 
circumstances  surrounding  the  crime  that  he  must  take  into 
account.  I  have  not  described  the  social  causes  of  crime  so 
carefully  for  nothing;  they  should  prove  that  a  crime,  apart 
from  the  directly  recognizable,  purely  outward  conditions, 
is  influenced  by  numberless  factors  which  are  of  greater  sig- 
nificance in  judging  it  than  is  the  fact  of  bad  inheritance. 

An  administration  of  justice  that  pays  no  attention  to  this, 
or  knows  nothing  of  the  social  conditions  of  crime,  will  be 
little  more  than  a  mechanical  activity,  it  will  be  an  adminis- 
tration of  the  letter,  not  the  spirit,  of  the  law.  To  these 
intricate  preliminary  conditions  that  are  essential  to  the 
performance  of  a  penal  act  is  then  added  —  most  difficult 
of  all  to  grasp  and  understand  —  the  individuality  of  the 
criminal.  Even  such  a  staunch  adherent  of  the  doctrine  of 
free  will  as  Krohne  ^  is  obliged  to  admit :  "  Why,  in  one  case, 
the  will  triumphantly  resists  these   [social]  causes,  and,  in 

1  Loc.  cit.  Note  84. 

2  Krohne,  "Lehrbuch  der  Gefangniskunde,"  p.  205. 


256  THE  STRUGGLE  AGAINST  CRIME  [§24 

another,  fails,  is  an  incalculable  problem;  it  is  one  of  those 
mysteries  before  which  at  present  we  stand  baflQed  with  the 
confession  'Ignoramus'  on  our  lips." 

How  can  the  judge  solve  an  equation  that  is  composed 
entirely  of  unknown  quantities,  how  can  he  find  his  way  in 
this  chaos  of  social  and  psychological  causes,  how  form  his 
judgment?  It  would  scarcely  be  possible  to  find  a  sharper 
condemnation  of  sentencing  than  Finger  ^  gives,  when  he 
says:  "Definite  directions  in  regard  to  the  passing  of  sen- 
tences, which  is  more  a  matter  of  feeling  than  of  deliberation, 
cannot  be  given."  Only  Wach's  ^  opinion  is  even  more 
annihilating:  "It  is  true  that  the  judicial  passing  of  sentences 
is  largely  a  matter  of  arbitrariness,  mood,  and  chance.  This 
is  an  open  secret,  a  painful  fact  of  experience,  to  everyone 
who  has  been  engaged  in  criminal  proceedings.  Whether 
the  accused  is  sentenced  to  six  or  five  or  four  weeks,  or  two 
months,  imprisonment  is  more  dependent  on  the  judges, 
who  happen  to  be  sitting,  on  the  subjective  views  and  sug- 
gestions of  the  judge,  on  his  temperament  and  his  digestion, 
than  on  the  gravity  of  the  crime." 

But  this  hard  criticism,  the  correctness  of  which  is  only  too 
obvious,  and  the  full  recognition  of  the  fact  that  the  problem 
caimot  be  solved,  do  not  permit  the  criminal  judge  to  refrain 
from  sentencing.  He  must  find  reasons  for,  and  impose,  a 
carefully  measured  sentence.  The  adherents  of  the  theory 
of  retribution  apparently  see  a  remedy  in  the  exact  determina- 
tion of  the  psychological  judgment  of  values  for  every  crim- 
inal act.  Birkmeyer  desires  a  "restriction  of  the  judicial 
power,  which  extends  too  far  in  this  direction";  Schmidt' 
asks  for  "standards  which  compel  the  court,  which  shall  be 

1  Finger,  "Lehrbuch  des  deutschen  Strafrechts,"  p.  513. 

2  Wach,  "Die  Reform  der  Freiheitsstrafe,"  p.  41. 
»  Loc.  cit.  p.  308. 


§24]  THE  PURPOSE  OF  PUNISHMENT  257 

restricted,  as  far  as  possible,  in  the  exercise  of  its  judgment, 
to  give  between  a  certain  fixed  maximum  and  minimum, 
heavier  and  lighter  penalties  for  the  graver  and  milder  forms 
of  the  same  offense." 

"This  precise,  numerical  expression  of  the  gravity  of  each 
separate  offense  in  marks,  months  in  prison,  years  in  the 
penitentiary,  is  scarcely  less  naive,"  wrote  Kraepelin  in  his 
treatise  on  the  "Abschaffung  des  Straf masses,"  "than  the 
more  lucrative  idea,  which  sprang  from  the  same  soil,  of 
regulating  the  forgiveness  of  sins  by  issuing  share  certificates 
of  different  value  on  the  stock  capital  of  surplus  good  works." 
This  curious  method  of  compensation  by  providing  for  an 
act  an  accurately  measured  penalty  is,  moreover,  to  be 
crowned;  character  and  education,  descent  and  environment, 
resolution  and  remorse,  former  convictions  and  injured  legal 
values,  are  to  be  squeezed  into  a  schematic  system,  which, 
"with  the  greatest  possible  restriction  of  the  judicial  judg- 
ment," shall  make  it  possible  to  practice  just  retribution. 
Apparently  the  judge  will  merely  have  to  refer  to  something 
like  a  price  list  in  order  to  see  how  heavy  the  penalty  must 
be,  taking  into  consideration  all  the  factors  that  bear  on 
the  crime. 

Whether  it  would  then  still  be  possible  to  find  a  judge  to 
perform  this  mechanical  work,  I  am  inclined  to  doubt.  But 
we  need  not  worry  about  that,  for  no  such  criminal  code  will 
ever  exist,  because  the  preliminary  supposition,  that  life  can 
be  expressed  in  formulae,  is  wrong,  absolutely  wTong.  How, 
then,  can  we  take  into  account  hereditary  influences,  educa- 
tion and  environment,  how  measure  the  significance  of  natural 
disposition  and  external  conditions?  A  law  that  still  further 
restricts  the  judge's  power  is  subject  to  the  same  criticism 
that  applies  to  our  present  criminal  law:  "We  do  not  know 
the  measure  that  we  desire  to  recompense.    It  is  solely  a  seek- 


258  THE  STRUGGLE  AGAINST  CRIME  [§24 

ing  and  groping  in  infinity,  —  this  that  we  take  to  be  the 
searching  out  of  the  guilt  for  which  we  want  to  create  a 
balance."  ^ 

I  will  not  delay  to  repeat  the  often  cited  proofs  that,  under 
the  present  system  too,  sentences  differ  in  every  court  accord- 
ing to  local,  and  widely  varying,  customs,  will  not  point  out 
how  often  higher  and  lower  courts  agree  as  to  the  act  but  differ 
as  to  the  kind  and  extent  of  the  penalty,  which  is  hardly 
compatible  with  "just  retribution,"  They  all,  however,  pay 
too  little  attention  to  the  effect  of  the  penalty.  If  an  official 
is  imprisoned  even  for  a  few  days,  he  loses  his  office  and  repu- 
tation; to  a  respectable  citizen  who  is  imprisoned  for  some 
negligence  or  slight  offense,  every  day  is  a  torture;  while 
an  habitual  inmate  of  penal  institutions  scarcely  feels  a  brief 
interruption  of  his  liberty  to  be  an  inconvenience. 

From  my  own  experience,  I  will  mention  only  the  following 
cases.  A  man  who  had  already  been  sentenced  22  times  for 
such  offenses  as  embezzlement  and  fraud,  theft  and  resisting 
an  officer,  assault  and  battery,  begging  and  vagrancy,  was 
convicted  of  his  twenty-third  offense,  insult,  and  received  a 
sentence  of  3  weeks;  his  next  conviction  was  for  insulting 
an  officer,  and  he  was  sentenced  to  24  days'  imprisonment. 
Another  had  served  43  sentences,  generally  for  a  number  of 
offenses  at  one  time;  he  had  been  sentenced  6  times  for 
assault  and  battery,  18  times  for  insult,  20  times  for  resisting 
State  authority.  His  forty-fourth  sentence,  for  "resistance, 
insult,  and  assault  and  battery"  was  set  at  3  months'  im- 
prisonment. A  third  had  spent  13  years  in  prisons  and 
penitentiaries,  apart  from  a  short  detention  for  begging: 
1  conviction  for  receiving  stolen  goods,  3  for  larceny,  and  14 
for  fraud  and  attempted  fraud.     His  seventeenth  sentence 

1  Seuffert,  "  Verhandlungen  des  21  Deutschen  Juristentages,"  1890,  I, 
p.  250. 


§24]  THE  PURPOSE  OF  PUNISHMENT  259 

was  again  for  "fraud  repeated  a  number  of  times"  and 
amounted  to  4  months'  imprisonment!  The  fourth,  after 
having  been  7  years  in  prison,  the  same  length  of  time 
in  the  penitentiary,  and  43^  years  in  the  house  of  correction, 
was  sentenced,  for  the  thirty-ninth  time,  to  3  days  for  beg- 
ging, for  the  thirty -sixth  time  to  6  months'  imprisonment  for 
repeated  thefts. 

These  are,  indeed,  particularly  striking  cases,  but  not  ex- 
ceptions. If  we  look  at  a  list  of  the  former  convictions  of  old 
and  habitual  offenders,  we  are  surprised  to  find  how  frequent 
such  cases  are.  To  none  of  these  men  does  a  few  months  in 
prison  mean  a  "disgraceful  punishment."  On  the  basis  of 
our  present  criminal  law,  increasing  the  severity  of  the  sen- 
tence does  not  greatly  change  the  fact  that  the  criminal  is 
much  too  accustomed  to  imprisonment  to  compare  the 
impression  it  makes  with  the  intense  effect  produced  on  a  man 
who  acted  in  a  moment  of  recklessness,  or  was  the  victim  of 
an  unfortunate  chain  of  circumstances.  It  is  precisely  the 
best  among  the  convicted  who  are  utterly  ruined  by  the  pun- 
ishment, the  most  depraved  who  are  scarcely  touched.  Thus 
the  unequalness  of  the  effect  of  the  penalty  also,  which  per- 
haps we  should  first  have  to  try  in  order  to  appreciate,  for- 
bids our  considering  the  sentence  a  just  compensation  for 
the  criminal  act. 

The  theory  that  considers  a  penalty  necessary  only  "quia 
peccatum  est,"  is  based  on  wrong  assumptions.  It  may  be 
left  entirely  out  of  the  question,  as  being  wrong  in  principle, 
—  the  more  so,  because  it  is  also  practically  worthless. 

The  Prussian  "  Zirkularverordnung "  of  1799,  which,  in 
view  of  the  increasing  number  of  thefts,  was  intended  to  make 
the  penalties  more  practical,  contains  the  following  passage: 
"In  making  these  changes  in  the  former  criminal  laws,  it  is 
our  intention,  as  the  paternal  head  of  the  State,  to  secure  to 


260  THE  STRUGGLE  AGAINST  CRIME  [§24 

our  faithful  subjects  the  quiet  possession  of  their  property,  to 
set  up  deterrent  examples  to  prevent  stealing  and  robbing, 
to  correct  criminals  where  possible,  and,  if  they  are  incorrigi- 
ble, to  render  them  innocuous  to  their  fellow-citizens."  In 
this  sentence  is  clearly  expressed  the  other  conception  of  the 
purpose  of  punishment :  to  bring  about  greater  legal  security, 
and  to  do  this  by  deterrence,  on  the  one  side,  and  by  correction 
and  rendering  harmless,  on  the  other. 

The  deterrent  effect  of  punishment  should  be  active  in  two 
directions.  It  must  impress  itself  on  the  consciousness  of  the 
people  at  large  and  thus  act  as  a  preventive,  and,  through  the 
punishment,  it  must  be  a  warning  to  the  individual  and  must 
thus  restrain  him  from  further  evil  deeds.  The  first  effect, 
general  prevention,  belongs  to  those  things  the  effect  of  which 
cannot  be  given  in  figures.  If  we  go  by  statistics,  we  come  to 
the  conclusion  that  the  hoped-for  effect  is  either  very  slight 
or  entirely  non-existent.  For  years  the  number  of  first  con- 
victions has  been  increasing  rather  than  diminishing,  certainly 
and  decidedly  increasing  among  juveniles,  as  has  already  been 
pointed  out.  From  this  we  may,  indeed,  conclude  that  the 
fear  of  punishment  is  not  sufficient  to  check  crime;  but  we 
must  not  forget  that  social  causes,  popular  customs,  economic 
distress,  too  early  participation  in  the  struggle  for  life,  largely 
explain  and  make  this  increase  comprehensible.  Hence  we 
must  restrict  our  opinion  of  general  prevention  to  this:  the 
deterrent  effect  of  punishment  is  not  great  enough  in  the  face 
of  the  growing  social  menace. 

That  punishment  does  not  deter,  may  also  sometimes  be 
due  to  its  too  liberal  application.  By  degrees  our  whole 
existence  has  become  so  surrounded  by  a  barbed-\\dre  fence  of 
penal  and  police  ordinances  that  it  is  really  difficult  to  remain 
entirely  unpunished.  We  must  not  deceive  ourselves  into 
thinking  that  the  fact  that  the  numerous  small  penalties  for 


§24]  THE  PURPOSE  OF  PUNISHMENT  261 

acts  such  as  beating  carpets  at  the  wrong  time,  omitting  to 
put  ashes  on  an  icy  sidewalk,  and  other  harmless  offenses, 
are  followed,  with  no  sharp  dividing  line,  by  those  offenses 
that  the  Penal  Code  threatens  \\'ith  punishment,  detracts 
from  the  gravity  of  the  penalty.  And  I  do  not  think  I  am 
mistaken  when  my  experience  leads  me  to  assert  that  the 
dread  of  prison  and  the  dread  of  punishment  have  lost  some- 
thing of  their  former  strength  in  the  popular  mind.  In  con- 
sidering this  fact,  I  attach  less  importance  to  the  fact  that  more 
humane  treatment,  cleanliness  and  sufficient  food,  simple 
though  it  be,  have  destroyed  some  of  the  terrors  of  imprison- 
ment; it  is  of  far  graver  import  that  the  feeling  that  causes 
people  to  look  at  crime  askance  should  be  weakened  or  lost. 
As  long  as  hundreds  of  thousands  of  hitherto  blameless  indi- 
viduals are  annually  punished,  no  very  fine  reaction  of  the 
people  against  criminality  can  take  place.  And  the  moral 
of  this  is,  that  we  need  fewer  threats  of  punishment  and 
greater  seriousness  in  the  prosecution  of  crime. 

At  the  moment  a  crime  is  decided  upon  or,  in  the  case  of 
passionate  crimes,  carried  out,  the  idea  of  punishment  has 
very  little  effect  as  a  counter-motive,  because  the  criminal 
is  either  so  excited  or  so  confident  of  remaining  undiscovered 
that  he  looks  upon  the  penalty  only  as  a  remote  contingency. 
Every  crime  committed  by  a  previously  unconvicted  person 
is  a  proof  of  the  failure  of  general  prevention.  Nevertheless, 
we  may  probably  assume  that,  especially  with  weak  and 
vacillating  persons,  the  fear  of  punishment  is  sometimes, 
in  the  moment  of  temptation,  determinative  and  prevents 
the  crime  being  committed;  this  of  course  carmot  appear  in 
the  statistics. 

Greater,  however,  than  the  value  of  the  threat  of  punish- 
ment in  the  individual  case  is  its  educational  value  for  the 
whole  view  of  life  held  by  the  people. 


262  THE  STRUGGLE  AGAINST  CRIME  [§24 

The  stamping  of  an  act  as  an  offense  the  commission  of 
which  the  State  will  prosecute  w^ith  unrelenting  severity, 
immediately  arouses  the  feeling  that  the  act  is  unsuitable, 
inadmissible,  disreputable,  contrary  to  duty.^  A  relatively 
harmless  example  may  illustrate  this.  The  possibility  of 
being  punished  for  dishonest  competition,  at  first  arouses  the 
attention  of  economic  opponents,  who  watch  each  other  care- 
fully, so  as  to  be  able,  in  case  of  misrepresentation,  to  act 
immediately.  But  already  the  reaction  is  becoming  notice- 
able, and  the  words  of  an  advertisement  are  carefully  weighed, 
—  not  alone  because  the  merchant  fears  the  eagle  eye  of  his 
envious  opponents.  Before  long  we  shall  be  able  to  look  upon 
it  as  a  matter  of  course  that  every  firm  that  cares  anything 
for  its  reputation  will  avoid  all  extravagant  advertisements, 
calculated  to  deceive  the  public,  as  being  unworthy. 

Thus,  general  prevention  operates  rather  quietly,  slowly, 
and  penetratingly,  making  the  consciousness  of  right  sharper, 
intensifying  the  general  feeling  for  right  and  wrong,  and  is 
thus  rather  educative  than  directly  deterrent. 

As  regards  the  effect  of  special  prevention,  the  figures  in 
the  statistics  of  relapse  are  uncommonly  instructive.  They 
show  that  it  fails  utterly.  We  have  already  seen  that  many 
criminals  reappear  before  the  criminal  judge  in  the  course  of 
the  same  year,  that  the  more  frequent  former  convictions  are, 
the  surer  and  quicker  is  the  relapse,  and  also  that  the  severity 
of  the  punishment  is  without  influence.  If  anyone  should 
take  the  trouble  to  jot  dowm  graphically  the  career  of  an 
habitual  criminal,  he  will  be  astonished  to  see  how  short  the 
time  always  is  between  the  end  of  one  sentence  and  the  com- 
mission of  a  new  crime,  especially  if  he  bears  in  mind  that  not 
every  offense  inmaediately  comes  to  the  knowledge  of  the  court. 

1  Liepmann,  "Einleitung  in  das  Strafrecht,"  Berlin,  1900,  O.  Haring, 
p.  291. 


§24]  THE  PURPOSE  OF  PUNISHMENT  263 

The  reasons  why  punishment  fails  to  have  a  deterrent 
effect  on  the  individual  lie  in  different  fields.  The  first  reason 
is  in  the  execution  of  the  sentence  itself,  which,  looked  at 
closely,  loses  much  of  its  horror.  I  do  not  share  the  opinion 
that  security  from  hunger  and  cold  makes  imprisonment 
actually  inviting.  Nor  can  the  occasional  remark  of  a  crim- 
inal, that  his  desire  for  the  comfortable  quiet  of  prison  life 
led  him  to  commit  some  offense,  lead  me  astray,  even  if  he 
speaks  the  truth.  It  has  been  my  experience  that  practically 
all  criminals  long  for  the  time  when  they  are  to  be  set  at  liberty. 
As  long  as  the  prisoner  in  a  penal  institution  is  subject  to 
the  strict  system  of  the  house,  and  sees  day  after  day  pass, 
all  too  slowly,  in  hard,  monotonous  work,  he  certainly  does 
not  look  on  imprisonment  as  desirable,  or  even  easy.  But  it 
is  a  well-known  psychological  phenomenon,  that  the  remem- 
brance of  pain  and  suffering  very  soon  fades,  and  that  time 
soothes  even  apparently  unendurable  trouble.  This  is  even 
truer  of  the  impressions  made  by  imprisonment,  in  which 
it  is  the  long  duration,  the  eternal  sameness,  the  strict  disci- 
pline as  a  whole,  that  weigh  so  heavily.  But  from  a  distance, 
the  danger  of  having  to  go  to  prison  again  does  not  seem  so 
unendurable;  as  a  counter-motive  to  new  crimes,  the  remem- 
brance has  scarcely  any  effect. 

Let  me  say  at  once  that  I  would  not  for  a  moment  consider 
it  advisable  to  keep  the  remembrance  alive  by  making  the 
penalty  severer.  Such  a  course  would  grind  the  more  harmless 
and  milder  criminals  even  finer  than  does  the  present  practice, 
and  would  be  ineffective  as  regards  habitual  criminals. 

The  second  reason  for  the  failure  of  special  prevention  is 
to  be  found  in  our  laws.  Recidivism  is  regarded  as  a  ground 
for  increasing  the  penalty  only  in  the  case  of  a  few  crimes, 
and  then  only  if  it  is  the  same  offense  that  is  repeated.  I 
have  had  to  point  out  again  and  again  that  all  offenses  of 


264  THE  STRUGGLE  AGAINST  CRIME  [§24 

equal  psychological  value,  as  well  as  the  fact  of  a  former 
conviction  for  any  offense,  should  be  taken  into  account 
in  passing  sentence.  As  a  matter  of  fact,  this  is  actually  done 
in  the  practice  of  the  courts.  I  am  always  glad  when  I  hear 
a  severe  sentence  imposed  on  the  ground  of  frequent  former 
convictions.  But  the  constant  taking  into  account  of  the  injury 
done  to  a  legal  value  prevents  the  carrying  out  of  this  principle, 
and  produces  such  judgments  as  those  mentioned  on  page  258. 
But  how  is  a  sentence  of  4  months'  imprisonment  to  make  an 
impression  on  an  old  swindler,  who  is  con\'icted  of  his  seven- 
teenth fraud,  and  how  can  3  days  in  jail  for  begging  affect  a 
man  who  has  spent  nearly  19  years  in  penal  institutions? 

If  punishment  were  to  have  any  deterrent  effect  at  all  on 
such  old  prison  habitues,  the  penalty  would  have  to  be  one 
to  be  really  feared,  and  that  could  only  be  hoped  if  it  were 
increased  for  every  offense.  But  —  after  all  that  has  been 
said,  this  requires  no  proof  —  even  then  the  effect  would  fail 
in  the  case  of  criminals  whose  nature  is  such  that  they  cannot 
be  influenced  by  a  motive  of  this  kind.  The  most  drastic 
laws,  fire  and  sword,  the  wheel  and  the  gallows,  have  not 
rooted  crime  out  of  the  world.  Hence,  where  it  is  not  possible 
to  operate  by  fear,  other  measures  must  be  taken. 

Punishment  is  intended  to  protect  society  from  the  criminal 
assaults  of  certain  individuals.  In  our  endeavors  to  reach  this 
goal  we  must  not  discard  a  method  because  it  rarely  proves 
to  be  effective.  Even  it  it  were  only  on  account  of  its  educa- 
tional value,  I  should  not  like  to  do  away  with  the  deterrent 
effect  produced  by  the  threat  of  punishment.  But  it  would 
be  a  mistake  to  construct  a  penal  code  entirely  from  the 
standpoint  of  deterrence. 

Let  him  who  does  not  approve  of  this  formula,  put  Heim- 
berger's  question  ^  to  himself:  Why  does  not  the  State  repeal 

^  Heimberger,  "Der  Begriff  der  Gerechtigkeit  im  Strafrecht,"  1903,  p.  31. 


§  25]  THE  MEANS  OF  PUNISHMENT  265 

its  criminal  laws?  With  Heimberger  he  will  have  to  answer: 
"Because  from  a  repeal  of  its  criminal  laws  the  State  would 
have  to  fear,  and  rightly,  the  war  of  all  men  against  all  men, 
the  destruction  of  all  order,  and  its  owm  end."  The  State 
must  protect  society  by  means  of  its  laws. 

Much  higher  is  the  endeavor  to  make  the  criminal  harmless 
by  making  him  better,  by  giving  him  the  incentives  that  he 
lacks  and  trying  to  supplement  his  defects  of  education  and 
disposition.  We  may  as  well  acknowledge  to  ourselves  at 
the  outset  that  these  efforts  will  often  fail,  will  fail  for  the  same 
reasons  that  the  attempt  at  deterrence  fails,  because  the 
means  used  to  correct  and  improve  the  criminal,  above  all 
the  execution  of  the  sentence  in  its  present  form,  have  too 
many  defects,  because  our  laws  fail  to  give  us  the  opportuni- 
ties that  we  need,  and,  finally,  because  many  criminals,  on 
account  of  their  natural  disposition  and  mentality,  are  incor- 
rigible. Even  from  the  standpoint  of  the  theory  of  better- 
ment, then,  nothing  can  be  done  with  these  latter  but  to  make 
them  harmless.  Defects  in  legislation  and  in  the  carrjdng 
out  of  sentences,  however,  can  be  remedied.  In  order  to  do  this 
we  need  only  keep  them  clearly  in  view,  and  I  will  now  try 
to  discuss  "punishments"  and  their  psychological  significance 
in  the  prevention  of  the  descent  into  crime,  always  keeping 
this  end  in  view:  the  protection  of  our  health,  our  honor, 
our  property. 

§  25.  The  Means  of  Punishment 

The  most  radical  means  of  preventing  a  criminal  from  re- 
peating his  evil  deeds  is  to  put  him  to  death.  Capital  punish- 
ment has,  therefore,  always  been  used  in  the  case  of  certain 
criminals  whose  particularly  dangerous  acts  made  them  a 
special  menace.  Thus  the  crime  was  "atoned  for,"  society 
was  relieved  of  the  necessity  of  supporting  such  a  person  for 


266  THE  STRUGGLE  AGAINST  CRIME  [§25 

years,  and  was  safe  from  the  danger  of  his  attacking  the 
officials  of  a  penal  institution  or,  in  case  he  should  escape, 
of  his  menacing  public  safety  in  general.  It  cannot  be  denied 
that,  from  the  standpoint  of  security,  capital  punishment  is 
justifiable;  de  Fleury  ^  even  desires  to  see  it  much  extended 
in  the  interest  of  a  social  selection;  what  is  repulsive  to  our 
feelings  about  the  outward  procedure  could  be  done  away 
with  by  changing  the  method  of  execution. 

The  grounds  for  and  against  capital  punishment  have  so 
often  been  discussed  ^  that  it  is  not  necessary  to  enumerate 
the  objections  to  it,  among  which  the  possibihty  of  a  mis- 
carriage of  justice  ^  is  the  most  serious.  For  the  most  part, 
they  lie  in  the  sphere  of  feeling,  which,  in  general,  rejects  the 
execution  of  the  death  sentence. 

It  is  essential,  however,  that  we  should  consider  whether 
capital  punishment  acts  as  a  deterrent;  I  can  scarcely  believe 
that  it  does.  German  statistics  do,  indeed,  show  that  the 
number  of  those  condemned  to  death  has  decreased  some- 
what, but  only  very  little.  Belgium,  on  the  other  hand, 
where  no  capital  punishment  has  been  carried  out  for  years, 
has  also  had  no  increase  of  the  crimes  for  which  capital 
punishment  is  the  penalty.  Observations  show  that  the  effect 
of  executions  is  by  no  means  deterrent.  Ferri  *  had  the  oppor- 
tunity of  being  present  at  two  executions  in  Paris.  His 
remarks  show  that  their  effect  on  the  suburban  population 
of  Paris  was  the  very  opposite  of  what  was  hoped  for.^  Instead 
of  dull  terror,  he  saw  curiosity,  pleasure  in  the  unusual  sen- 

1  De  Fleury,  "L'ame  du  criminel,"  Paris,  1898,  Felix  Alcan,  p.  134. 

2  Francart,  "La  peine  de  mort"  (Mitt,  der  I.  K.  V.  VII,  36). 

»  Lohsing,  "Abschaffung  der  Todesstrafe"  (Arch.  Krim.  Anthr.  IX,  1). 

*  Ferri,  "Les  criminels  dans  Tart  et  la  litterature,"  Paris,  1896,  Felix 
Alcan,  p.  75. 

*  A  fine  description  of  such  a  scene,  which,  as  comparison  with  Ferri's  ob- 
servations shows,  is  entirely  unexaggerated,  is  to  be  found  in  Zola's  Paris  " 
(Biblioth^que  Charpentier,  1898,-p.  491). 


§25]  THE  MEANS  OF  PUNISHMENT  267 

sation,  betting  as  to  what  the  demeanor  of  the  condemned 
man  would  be,  everything,  in  fact,  rather  than  the  solemnity 
suitable  to  such  a  sad  occasion.  It  can  positively  be  asserted 
that  the  peculiar  role  played  by  a  person  condemned  to  death, 
the  attention  that  his  deeds,  his  hfe,  his  behavior  at  the 
time  of  the  execution,  arouse,  thanks  to  the  public  love  of 
sensation  to  which  the  press  caters,  are  an  actual  attraction 
to  a  number  of  psycho-pathological  individuals.  The  fear 
of  lifelong  imprisonment  would  probably  have  a  more  whole- 
some effect  on  the  peculiar  individualities  of  assassins  and 
their  ilk  than  does  the  martyr's  halo  of  glory,  the  imagined 
fame  of  a  sensational  execution. 

Whatever  our  opinion  of  capital  punishment  may  be,  its 
retention  will  have  just  as  little  material  influence  on  crimi- 
nality as  its  abolition. 

Deportation  may,  undoubtedly,  be  regarded  as  a  conven- 
ient method  of  getting  rid  of  dangerous  persons  by  presenting 
them  to  other  countries.  Theoretically,  we  can  perfectly 
well  imagine  that  the  necessity  of  getting  on  in  a  strange 
country  might  divert  the  too  well  developed  impulse  from 
deeds  of  violence.  But,  considering  the  nature  of  criminals, 
I  fear  that  the  number  of  individuals  in  whom  this  possibility 
can  be  depended  on  would  be  quite  insignificant.  Suitable 
as  deportation  would  be  for  these  few  energetic  and  vigorous 
persons,  for  most  of  the  others  it  would  be  just  as  unsuitable; 
for  them  it  would  mean  an  altered  and  delayed  sentence  of 
death.  Most  of  the  attempts  made  hitherto  have  come  to 
grief,  largely,  probably,  on  account  of  wrong  selection.  As  to 
the  practical  success  of  deportation,  opinions  diflfer  widely.^ 
But  the  question  of  deportation  seems  to  me  to  be  well  worth 

^  Brack,  "Fort  mit  den  Zuchthausem,"  1894,  and  "Die  Gegner  der  De- 
portation," 1901;  Mittermaier,  "Kann  die  Deportation  im  deutschen  Straf- 
system  Aufnahme  finden?"  (ZStW.  XIX,  85);  Heimberger,  "Zur  Reform 
des  Strafvollzugs,"  1905. 


268  THE  STRUGGLE  AGAINST  CRIME  [§25 

further  discussion,  without  its  being  necessary  to  make  such 
discussion  difficult  by  adopting  a  passionate  tone.  For  the 
present,  certainly,  I  personally  think  we  should  do  well  to 
make  use  of  the  strength  of  our  prisoners  at  home.  We 
still  have  in  Germany  plenty  of  unfruitful  marshes  and 
heaths,  streams  to  be  dammed  and  valleys  to  be  closed  up, 
and  such  work  waits  to  be  done  in  places  where  it  is  impossible 
to  employ  ordinary  workmen,  because  it  is  too  difficult  to 
provide  them  with  shelter  and  food,  and  the  pay  would  be 
too  small.  But  here  the  State  can  step  in  as  an  employer, 
and  it  is  doing  so  more  and  more.  Only  those  convicts  are 
employed  who  have  good  prison  records,  and  only  in  places 
where  otherwise  the  work  would  not  be  done  because  laborers 
are  not  to  be  found,  or  where  exceedingly  high  wages  would 
prevent  the  work's  being  profitable.  In  the  year  1901,  2300 
prisoners  were  employed  in  all  the  provinces  of  Prussia,  and 
proved  themselves  to  be  willing  and  able.  "No  difficulty  was 
experienced  in  the  matter  of  discipline,  and  attempts  to  escape 
were  very  rare."  This  result  cannot  be  too  strongly  empha- 
sized, for  it  shows  that  even  recidivists  —  only  such  were  used 
in  this  work  —  do  not  under  all  conditions  require  expensive 
cells,  high  walls,  and  the  whole  official  prison  apparatus, 
in  order  to  behave  well.  Attempts  to  use  convict  labor  out- 
side of  the  country  have  proved  so  satisfactory  that  we  might 
well  demand  that  they  should  be  more  extensive,  but  as  long 
as  the  use  of  such  labor  at  home  proves  to  be  practicable  — 
being  both  cheaper  and  better  in  every  respect  —  we  need 
not  consider  penal  deportation. 

The  slight  success  of  imprisonment  has  led  Bennecke  to 
suggest  that,  in  the  case  of  the  incorrigible  criminal,  the  pim- 
ishments  should  be  made  so  severe  that  he  would  fear  them, 
wherefore  Bennecke  demands  that  such  criminals  should 
receive    special    treatment,    in   which    corporal    punishment 


§25]  THE  MEANS  OF  PUNISHMENT  269 

should  be  one  of  the  chief  features.  The  advocates  of  corporal 
punishment  frequently  refer  to  the  good  results  obtained  by 
it  in  London,  where  in  a  short  time  it  is  supposed  to  have  put 
an  end  to  attacks  by  so-called  garroters  in  the  streets.  This 
proof  of  the  efficacy  of  corporal  punishment,  unfortunately, 
rests  upon  an  historical  error.^  In  January,  1863,  a  high  official 
congratulated  the  grand  jury  on  having  been  so  successfully 
energetic  that  the  bands  of  garroters  had  disappeared;  hence 
the  law  introducing  corporal  punishment,  which  was  not 
proposed  until  July  of  the  same  year,  came   too  late. 

It  is  to  be  regretted  that  Denmark  has  recently  enacted  a 
corporal  punishment  law,  although  it  applies  to  only  a  few 
cases.  At  the  same  time  the  conditional  sentence  was  in- 
troduced and  the  age  of  legal  capacity  for  acts  was  raised  from 
10  to  14  years,  both  changes  being  so  advantageous  that  we 
can  afford  to  overlook  the  revival  of  corporal  punishment. 
Nevertheless,  it  is  disheartening  enough  that  a  cultural  state 
has  reverted  to  such  a  brutal  means  of  education  and  one  that 
is  of  most  questionable  value.  Altogether  it  is  surprising  to 
find  people  still  enthusiastically  praising  flogging.  Experience 
in  the  army,  where  it  was  formerly  thought  impossible  to  get 
on  without  the  stick,  has  shown  how  easily  corporal  punish- 
ment can  be  dispensed  with.  Discipline  in  our  navy  is  far 
better  than  in  those  of  many  other  countries,  where  fear  of 
the  "cat-o'-nine-tails,"  or  other  equally  edifying  instruments, 
helps  to  keep  the  men  in  order.  Such  humiliating  methods  of 
punishment  are  surely  not  necessary. 

Corporal  chastisement  does  still  exist  in  Prussian  peniten- 
tiaries as  a  disciplinary  punishment,  but  it  is  very  rarely  used. 
The  brutalizing  effect  that  corporal  punishment  must  have  on 
the  man  who  is  flogged,  on  the  prison  officials,  and  on  the 

1  Typjerg,  "Die  Prllgelstrafe  in  DfLnemark"  (MSchrKrimPsych.  I,  415 
and  II.  133). 


270  THE  STRUGGLE  AGAINST  CRIME  [§25 

spectators,  is  out  of  all  proportion  to  the  possible  good  effected. 
Krohne  ^  speaks  most  decidedly  against  it.  "  It  shows  an 
entire  misunderstanding  of  the  'brutal  nature  of  criminals' 
to  believe  that  the  prospect  of  intense  physical  pain  would 
prevent  an  outbreak  of  their  malice  or  passion."  Whoever 
desires  to  convince  himself  of  its  failure  as  a  means  of  de- 
terrence, should  read  Dostoievsky's  minute  psychological 
observations  made  during  his  imprisonment  in  Siberia.^ 
In  any  case,  the  introduction,  or  rather  the  revival,  of  cor- 
poral punishment  in  our  penal  system  would  involve  so  many 
disadvantages  that  it  is  a  matter  of  indifference  whether 
occasionally  an  individual  criminal  is  found  who  fears  it. 
It  is  certain  that  no  one   improves   under  it. 

The  loss  of  civil  rights  is  just  as  ineffective  a  means  of  de- 
terrence as  of  correction.  It  may  even  hinder  a  man  in  his 
efforts  to  rehabilitate  himself  in  society,  as,  for  instance, 
when  his  inability  to  fill  the  office  of  a  guardian,  or  to  witness 
a  document,  makes  it  known  to  those  about  him  that  he  is  a 
former  convict.  But  such  cases  are  becoming  rarer  and  rarer. 
The  loss  of  civil  rights  now  generally  follows  only  if  a  crime 
has  been  committed  that  betrays  a  particularly  base  char- 
acter, and  it  is  improbable  that  such  persons  will  immediately 
seriously  endeavor  to  rehabilitate  themselves.  It  is  entirely 
in  the  interest  of  the  State  to  deprive  them  of  every  influence 
on  public  and  private  affairs.  I  consider  it  clearly  advisable 
that  this  loss  of  rights  should  be  extended  to  include  the  right 
to  exercise  parental  authority.  Above  all,  the  right  of  guard- 
ianship, even  in  the  immediate  family,  must  be  taken  from 
one  who  shows  by  his  behavior  that  he  is  unable  to  lead  an 
upright  life  himself,  much  less  to  supervise  the  training  and 
education  of  minors  and  to  manage  their  property. 

^  "Lehrbuch  der  Gefangniskunde,"  p.  356. 

*  Dostoievsky,  "  Memoiren  aus  einem  Totenhaus,  Leipzig,  Philipp  Reclam." 


§25]  THE  MEANS  OF  PUNISHMENT  271 

Placing  a  man  under  police  surveillance  is  of  particular 
interest,  because,  in  this  instance,  the  decision,  by  law,  rests 
with  the  prison  officials;  even  though  the  right  to  impose 
police  surveillance  is  assigned  to  the  "higher  state  police 
authorities,"  yet  there  is  no  doubt  that  the  greatest  weight 
is  laid  upon  the  "judgment  of  the  administrators  of  the 
prison."  Here  we  find  recognition  of  the  principle,  that 
the  changing  of  an  admissible  secondary  punishment  into  a 
definitely  imposed  one  should  be  made  dependent  on  the  in- 
dividuality of  the  criminal,  which  careful  observation  affords 
a  better  opportunity  to  judge  than  does  court  procedure. 

Its  advocates  are  few,  and  for  good  reasons.  The  habitual 
criminal  laughs  at  it.  He  knows  how  to  escape  it  as  soon  as 
he  begins  his  underhand  doings  again.  In  the  lists  of  punish- 
ments imposed  on  old  habitual  criminals,  police  surveillance 
is  never  lacking.  It  has  probably  never  hindered  a  man  from 
returning  to  crime,  but  often,  when  a  man  has  been  trying 
to  pull  himself  together  again,  poUce  surveillance  has  been 
the  determinative  factor  that  has  drawn  him  back  into 
the  abyss.  This  experience  has  led  to  an  arrangement  by 
which,  in  certain  cases,  provident  societies,  instead  of  the 
police,  are  allowed  to  exercise  the  protective  supervision.  In 
this  way  the  interference  of  the  lowest  organs  of  the  police  in 
the  career  of  a  released  convict  is  avoided.  When  the  chap- 
lain of  an  institution,  whom  experience  of  many  cases  has  shown 
"how  useless,  on  the  one  hand,  and  harmful,  on  the  other, 
the  effect  of  police  surveillance  may  be,"  feels  himself  con- 
strained, in  his  capacity  as  a  prison  official,  to  oppose  the  ex- 
ercise of  such  supervision  in  most  cases,^  and  when  it  is  known 
that  this  view  is  shared  by  nearly  all  intelligent  prison  officials, 
the  wish  to  have  §§38  and  39  entirely  omitted  from  the  Penal 
Code  is  probably  justified;  they  would  hardly  be  missed. 

*  Krauss,  "Der  Kampf  gegen  die  Verbrechensursachen,"  1905,  p.  359. 


272  THE  STRUGGLE  AGAINST  CRIME  [§25 

Most  questionable,  in  particular,  is  the  right  of  the  police 
authorities  to  expel  a  former  convict  from  a  city  or  town.^ 
The  handing  over  of  delinquents  to  the  State  police  author- 
^X.  jties  I  have  already  spoken  of  as  being  the  recognition  of  the 
necessity  of  social  repression,  even  when  the  offense  is  quite  a 
minor  one.  It  is  surprising  that  this  measure  applies  only  to 
beggars,  tramps,  drunkards,  prostitutes,  and  cadets,  and  not 
to  far  more  dangerous  persons.  When  these  delinquents  are 
turned  over  to  them,  the  State  police  authorities  have  the  right 
to  commit  the  convicted  persons  to  a  workhouse  for  a  period 
not  exceeding  two  years.  This  benefits  not  only  society, 
but  also  the  vagabonds  and  prostitutes  themselves,  although 
usually  they  are  far  from  being  satisfied  with  this  treatment. 
A  very  large  number  of  physical  and  mental  inferiors  are 
found  among  them.  Where  the  firm  will  of  the  institution 
officials  affords  them  a  protection  from  their  own  instability, 
where  the  work  assigned  them  spares  them  the  necessity  of 
taking  thought  for  the  morrow,  where  the  impossibility  of 

'  The  power  of  the  police  to  expel  criminals  rests,  in  Prussia,  on  the  statute 
of  December  31,  1842,  relating  to  the  settlement  of  newly  arrived  persons. 
The  second  paragraph  of  this  law  determines,  as  an  exception  to  the  "  Frei- 
fugigkeitsprinzip,"  that  the  stay  of  a  Prussian  citizen  in  a  place  where  he  has 
his  own  dwelling  or  is  able  to  provide  for  himself  can  be  forbidden  or  made 
difficult  by  irksome  conditions: 

"If  the  State  police  finds  it  necessary  to  exclude  a  released  convict  from 
residence  in  a  certain  place.  The  State  police  authorities,  however,  are  only 
empowered  to  do  this  in  the  case  of  convicts  who  have  been  imprisoned  in  a 
penitentiary  or,  for  a  crime  which  stamps  the  'perpetrator  as  a  person  dangerous 
to  public  safety  or  morality,  has  been  sentenced  to  some  other  penalty  or  has  been 
imprisoned  in  a  house  of  correction." 

The  question  whether  this  regulation  is  still  applicable  or  has  perhaps  lost 
its  validity  in  consequence  of  the  subsequent  national  criminal  code,  is  one  of 
the  most  disputed  points  of  public  law.  The  "  Oberverwaltungsgericht, " 
however,  in  its  decision  of  February  24,  1883  (vol.  IX,  p.  415),  has  accepted 
its  validity  and  given  in  detail  reasons  for  doing  so.  Hence,  with  us,  the  law  is 
still  in  force,  that  criminals  who  show  themselves  to  be  dangerous  to  public 
safety  or  morality  —  and  what  criminal  is  not?  —  are  subject  to  expulsion 
by  the  police  authorities. 


§25]  THE  MEANS  OF  PUNISHMENT  273 

obtaining  spirits  puts  an  end  to  their  continuous  drunkenness, 
idle  vagabonds  often  prove  to  be  industrious,  reliable  work- 
men, and  indolent  prostitutes  to  be  skilful  and  willing  serv- 
ants. But  purposeful  and  unremitting  guidance  is  necessary, 
otherwise  their  energy  fails  them.  Hence  they  relapse  im- 
mediately into  idleness  as  soon  as  they  are  discharged.  From 
this  it  follows  that  the  period  of  confinement  must  not  be  too 
short.  In  the  case  of  those  who  are  corrigible,  release  might 
be  tried  after  several  months  of  model  behavior,  perhaps  in 
the  form  of  a  leave  of  absence,  which  should  become  perma- 
nent if  the  good  behavior  continues  for  a  year  or  two.  But 
the  incorrigibles  have  shown  themselves  to  be  still  as  bad  at 
the  end  of  two  years,  the  longest  time  for  which  they  can  be 
committed  in  Germany.  The  prostitutes  immediately  return 
to  the  brothel,  the  men  resume  their  interrupted  wanderings, 
and  it  is  only  due  to  chance  or  their  skill  in  eluding  the  eye  of 
the  police  if  they  are  not  re-arrested  after  a  few  days.  The 
short  time  that  they  spend  in  jail  before  they  are  returned 
to  the  workhouse  is  quite  superfluous.  It  only  considerably 
increases  the  expense  to  the  State,  in  so  far  as  they  have  to  be 
taken  first  to  the  jail  and  then  sent  from  there  to  the  work- 
house, instead  of  being  immediately  committed  to  the  latter. 
This  delivering  of  offenders  to  the  State  police  is  at  present 
only  a  half-measure  which  has  stopped  short  of  the  final  and 
most  important  step.  But  —  and  herein  lies  its  advantage 
from  the  standpoint  of  a  purposeful  criminal  policy  —  it 
has  broken  with  the  principle  of  retribution,  and  only  serves 
the  purpose  of  freeing  society  from  these  parasites.  It  cer- 
tainly cannot  be  denied  that  the  sums  obtained  by  begging 
amount  to  millions,  but,  after  all,  anyone  who  voluntarily 
taxes  himself  for  the  support  of  the  habitual  beggar  can  put 
a  stop  to  it  whenever  he  chooses.  It  is  not  in  begging  and 
tramping  that  the  danger  lies,  but  in  the  fear  of  work,  in 


274  THE  STRUGGLE  AGAINST  CRIME  [§25 

drunkenness,  in  the  state  of  being  a  parasite;  these  individuals 
are  for  the  most  part  still  in  the  first  stages  of  criminal  activity. 
And  from  this  the  State  draws  its  right  to  defend  itself  deci- 
sively. We  can  but  rejoice  in  this.  The  first  steps  will  certainly 
be  followed  by  others,  and  in  other  fields :  probationary  release 
in  the  case  of  the  better  element,  supervision  for  years,  even, 
under  some  circumstances,  as  Hippel  ^  demands,  until  death. 

Fines,  in  their  present  form,  are  altogether  useless,  above  all 
because  they  are  not  sufficiently  adapted  to  the  financial 
circumstances  of  the  persons  punished.  The  vicarious  pen- 
alty, moreover,  which  permits  the  substitution  of  a  prison  or 
even  penitentiary  sentence  if  the  fine  cannot  be  paid,  and 
allows  the  offender  to  free  himself  from  the  changed  sentence 
by  paying  the  amount  of  the  fine,  should  be  entirely  rejected. 
This  turns  the  fine  into  a  class  penalty,  as  it  will  not,  of  course, 
occur  to  the  well-to-do  man  to  submit  to  imprisonment 
rather  than  pay  a  relatively  small  sum,  while  the  poor  man 
cannot  do  otherwise  than  serve  his  time  in  prison. 

It  would  be  far  better,  instead  of  imprisonment,  which  is 
only  an  expense  to  the  State  and,  moreover,  is  entirely  ineffec- 
tive as  a  punishment,  to  make  the  obligation  to  perform  certain 
municipal  and  other  work  the  alternative.  Such  a  possi- 
bility did,  indeed,  formerly  exist,  for  the  sixth  section  of  the 
introductory  statute  of  the  Penal  Code  says  expressly :  "  When 
in  the  national  laws,  instead  of  imprisonment  or  a  fine,  forestry 
or  municipal  work  is  provided  or  remitted,  this  stands." 
According  to  the  general  opinion,  even  new  national  laws, 
providing  in  the  same  way  for  the  performance  of  public 
work  instead  of  a  fine  or  imprisonment,  may  be  enacted,^  if 

1  von  Hippel,  "Verhiitung  und  Bestrafiing  von  Bettel,  Landstreicherei 
iind  Arbeitsscheu, "  77.  Jahresbericht  der  Rhein.-Westf.  Gefangnisgesell- 
schaft  und  zur  Vagabundenfrage,  Berlin,  O.  Liebmann,  1902. 

*  Olshausen,  "Kommentar  zum  Strafgesetzbuch  fiir  das  Deutsche  Reich," 
I,  p.  27. 


§25]  THE  MEANS  OF  PUNISHMENT  275 

the  national  legislation  in  question  already  contained  such 
provisions.  In  its  law  relating  to  forestry  thefts  of  April 
15,  1878,  Prussia  has  especially  urged  this  forestry  and 
municipal  work.  I  was  unable,  however,  to  ascertain 
whether  and  to  what  extent  this  method  of  working  off  is 
applied,  but  it  seems  to  me  that  a  very  rational  idea  lies 
at  the  bottom  of  it,  the  re-introduction  of  which  into  our 
penal  system  would  be  practicable.  Such  penal  labor,  which 
von  Jagemann  '  also  advocates,  would  probably  be  far  more 
unpleasant  to  most  of  those  who  are  sentenced  to  jail,  would 
be  far  more  likely  to  restrain  them  from  new  offenses  and 
bring  the  gravity  of  their  actions  better  home  to  them,  than 
does  a  few  days'  imprisonment.  At  the  same  time  the  amount 
of  work  required  of  an  offender  could  be  better  adapted  to 
his  physical  strength.  If  he  should  altogether  refuse  to  work, 
that  would  show  that  he  is  not  willing  to  submit  to  the  social 
order,  and  severer  measures  would  have  to  be  taken. 

Hans  Gross  ^  has  recently  written  in  favor  of  the  introduc- 
tion of  "house  arrest"  to  take  the  place  of  fines  and  brief 
jail  sentences.  The  objection  that  house  arrest  would  inter- 
fere with  a  workman's  occupation.  Gross  seeks  to  overcome 
by  suggesting  that  such  persons  should  be  confined  to  their 
homes  on  their  free  days  only.  Gladly  as  I  acknowledge  the 
suitability  of  the  house  arrest  as  a  penalty  that  would  be  much 
more  felt  than  a  fine,  especially  by  the  well-to-do,  yet,  as  a 
physician,  I  must  raise  a  new  objection  to  it.  A  waiter  or 
a  railway  employee  who  —  I  am  following  Gross's  example  — 
has  only  one  free  day  in  ten  could  not  forego  two  such  suc- 
cessive holidays  without  injury  to  his  health,  nor  could  a 
servant  do  without  her  free  Sunday  afternoons.  The  health 
of  a  capitalist,  however,  would  certainly  not  suffer  if  he  were 

1  Blatter  fUr  Gefangniskunde.  XXIV,  17, 

»  Hans  Gross,  "Hausarrest  als  Strafmittel "  (MSchrKrimPsych.  II,  209). 


276  THE  STRUGGLE  AGAINST  CRIME  [§25 

obliged  to  stay  in  the  house  for  two  successive  days.  It  is 
unavoidable  that  the  effect  of  house  arrest  would  be  too 
unequal  on  the  diflFerent  classes  of  the  population,  and,  for 
that  reason,  I  fear  it  will  find  few  advocates. 

The  reprimand  as  a  punishment  exists  only  for  minors 
between  the  ages  of  twelve  and  eighteen.  It  does  not,  of 
course,  balance  the  injury  done,  and  must,  therefore,  be 
characterized  as  a  purely  corrective  penalty.  Is  it  efifective 
as  such?  In  certain  cases  I  think  it  undoubtedly  is  so.  The 
reprimand  is  applicable  only  in  "particularly  mild  cases," 
and  then  it  amounts  to  nothing  but  a  serious  admonition  from 
the  court  to  lead  an  upright  life.  But  where  such  slight  offenses 
are  cencerned,  is  it  necessary  to  use  the  whole  outward  appa- 
ratus of  a  formal  court  trial?  Certainly  not.  In  fact,  we  must 
even  go  farther,  and  ask,  whether  children  should  come  before 
the  court  even  for  more  serious  crimes.  This  question  too 
may  be  answered  in  the  negative.  I  shall  return  to  the  treat- 
ment of  juveniles,  but  merely  wished  here  to  emphasize  the 
fact  that  the  existence  of  the  punishment  of  the  reprimand  is 
justified  only  from  the  standpoint  of  the  theory  of  correction. 

The  most  important  means  of  punishment  is  deprivation  of 
liberty.  Our  criminal  code  recognizes  four  different  kinds: 
1.  Simple  imprisonment;  its  length  may  be  from  one  day  to 
six  weeks.  2.  Imprisonment  with  supervision  of  the  occupa- 
tion and  mode  of  life  of  the  prisoner,  imprisonment  in  a  for- 
tress; the  sentence  may  be  for  from  one  day  up  to  fifteen  years, 
or  it  may  be  for  life.  3.  The  prison  sentence,  the  minimum 
being  for  one  day,  the  maximum  for  five  years.  Prison  con- 
victs may  be  employed  at  some  work  suited  to  their  abilities 
and  conditions;  at  their  request  they  must  be  so  employed. 
4.  Penitentiary  imprisonment  may  be  for  life  or  temporarily; 
if  the  latter,  then  it  may  be  for  from  one  to  fifteen  years. 
Penitentiary  convicts  must  be  regularly  employed. 


§25]  THE  MEANS  OF  PUNISHMENT  277 

This  gradation  shows  that  another  factor  is  added  to  the 
•  deprivation  of  Hberty,  that  of  work,  which  advances  from 
mere  supervision  to  the  possibiHty  of  employment  and  to  the 
compulsion  to  work.  In  practice,  the  differences  in  the  manner 
of  work,  particularly  between  the  prison  and  the  penitentiary, 
have  almost  completely  disappeared.  In  general,  there  is 
the  compulsion  to  work,  and,  with  negligible  exceptions,  the 
convict  has  not  even  a  choice  of  employment.  Every  penal 
institution  has  a  limited  number  of  occupations,  often  so 
Hmited  that  it  is  impossible  properly  to  consider  physical 
and  mental  individuality.  Formerly  the  most  various  trades 
were  represented  in  every  institution.  The  letting  of  the  work- 
ing force  to  contractors  then  led  to  competition  with  outside 
labor,  which  is  not  desirable  in  the  interest  of  the  working 
class.  Thus  the  State  came  more  and  more  to  admit  only 
those  trades  that  delivered  work  for  other  State  institutions, 
for  the  army  and  for  the  railway  administrations,  and  to  carry 
out  this  work  under  its  own  management.  To  be  sure,  com- 
petition with  outside  workmen  is  not  yet  at  an  end.  For 
everything  that  is  made  in  penal  institutions  would  otherwise 
be  made  by  free  workmen.  But  this  restriction  to  the  State's 
own  needs  affects  only  a  few  trades,  and  the  work  is  not  indis- 
pensable. It  is  doubtful,  however,  whether  the  interests  of 
society  are  adequately  served  in  this  way.  In  many  cases  the 
work  is  done  with  the  most  antiquated  equipment,  which 
involves  a  highly  unnecessary  waste  of  force.  Moreover,  in  a 
large  number  of  penal  institutions  it  is  absolutely  impossible 
to  teach  a  prisoner  a  trade  that  will  be  useful  to  him  later 
in  life  and  will  thus  aid  in  preventing  his  relapse  into  crime. 

When  we  examine  imprisonment  with  and  without  the 
compulsion  to  work,  in  regard  to  its  expected  result,  we  must 
be  clear  in  our  minds  from  the  outset  that  correction  and 
deterrence  here  go  hand  in  hand  with  the  aim  to  protect 


278  THE  STRUGGLE  AGAINST  CRIME  [§25 

society.  Above  all,  imprisonment  prevents  the  individual 
who  is  a  social  menace  from  following  his  inclinations  at  the 
expense  of  the  community.  In  addition,  it  has  a  powerful 
influence  on  the  whole  mode  of  thought  of  the  prisoner.  He 
becomes  a  member  of  a  well-ordered,  self-contained  organism, 
in  which  everything  is  regulated  to  the  minute.  The  carefully 
planned  rules  of  the  institution  keep  the  limits  of  his  right 
always  before  his  eyes,  he  learns  to  obey,  learns  to  submit, 
becomes  accustomed  to  order  and  cleanliness,  and,  above  all 
—  he  learns  to  work. 

Germany  has,  fortunately,  never  adopted  such  foolish 
methods  of  compulsory  work  as  the  treadmill,  the  ball  and 
chain,  etc.,  which  are  still  used  in  some  other  countries.  This 
purely  physical  activity,  in  consequence  of  its  deadening, 
mechanical,  and  entirely  purposeless  motion,  has  a  thoroughly 
demoralizing  influence  on  mind  and  body;  it  is  entirely  at 
variance  with  the  purpose  that  working  is  intended  to  ac- 
complish, that  is,  to  accustom  the  criminal  to  regular  and  in- 
dustrious activity.  With  us  an  incentive  is  offered  him  in 
the  shape  of  a  small  reward  of  labor,  which  at  the  same 
time  may  help  him  over  his  first  period  of  need  on  his  release 
(compare  p.  237).  The  daily  stint  of  work  is  usually  fixed 
with  care,  at  an  amount  that  the  average  workmen  ^  can 
well  accomplish  with  constant  industry.  If  he  does  more, 
his  reward  is  increased;  if  less,  all  the  severity  of  disciplinary 
punishments  are  brought  to  bear  upon  him. 

I  cannot  refrain  from  confessing  here  that,  in  the  course  of 
my  activity  as  prison  physician,  I  have  completely  lost  my 
approval  of  the  "stint,"  It  seemed  to  me  to  be  of  exception- 
ally educational  value  to  set  the  prisoner  a  definite  task,  in 
the  accomplishment  of  which  he  might  show  his  willingness 

1  Of  course  the  state  of  a  prisoner's  health  must  be  suflSciently  taken  into 
account. 


§25]  THE  MEANS  OF  PUNISHMENT  279 

and  exercise  his  industry.  But  the  first  condition  in  fixing  the 
task  would  naturally  be  proper  consideration  of  the  mental 
and  physical  capacity  of  the  person  who  is  to  perform  it. 
Even  if  that  were  possible,  many  an  industrious  workman  is  so 
clumsy  by  nature  that  he  cannot  keep  step  with  his  more 
skilful  companions.  Only  the  intimate  knowledge  of  such  a 
man,  usually  impossible  to  the  overburdened  prison  officials, 
can  protect  him  from  punishment  on  account  of  failure  to 
perform  his  task.  The  practice  of  requiring  a  definite  "stint," 
the  average  amount  of  work  to  be  expected,  tempts  the 
oflScials  to  judge  mechanically  of  a  man's  willingness  to  work 
by  his  ability  to  work,  and  this  is  a  serious  defect.  The 
judging  of  a  prisoner's  moral  qualifications  by  the  work  he 
accomplishes  is  an  error  that  an  efficient  prison  official  — 
and  we  should  have  only  such  —  may  not  make,  but  which, 
unfortunately,  is  only  too  common. 

Of  still  graver  import  is  the  fact  that  much  work  is  done, 
not  by  the  "job,"  but  by  the  day.  According  to  my  experience, 
a  prisoner  must  be  excessively  lazy  before  the  fact  is  discovered, 
if  he  works  by  the  day,  so  that  such  men  are  scarcely  ever 
punished  for  insufficient  work.  This  is  soon  observed  by  the 
workmen  who  work  by  the  "stint,"  and  the  feeling  that  it  en- 
genders of  being  unfairly  treated  is  often  the  cause  of  con- 
siderable bitterness.  I  am  well  aware  that  these  remarks  of 
mine,  based  on  personal  observation,  on  the  punishment  lists 
of  different  penal  institutions  and  the  reports  of  all  kinds 
of  prisoners,  will  be  decidedly  contradicted  by  most  prison 
officials,  but  I  have  come  to  my  present  conviction  slowly  and 
much  against  my  desire,  being  gradually  converted  by  experi- 
ence, and  if  I  should  fully  express  my  opinion  to-day,  it  would 
be  absolutely  for  the  abolition  of  work  by  "stints,"  —  not  of 
work  altogether,  of  course,  for  I  am  a  firm  believer  in  labor, 
and,  moreover,  in  industrious  labor. 


280  THE  STRUGGLE  AGAINST  CREVIE  [§25 

To  many  a  convict  prison  is  the  place  where  he  first  experi- 
ences the  pleasure  due  to  the  completion  of  a  task,  where  he 
first  seeks  to  acquire  something  by  the  industrious  use  of  his 
hands. 

The  prisoner  also  learns  to  appreciate  the  blessing  of  work 
from  another  side;  it  helps  him  through  the  tedious  monotony 
of  uniform  days.  Without  occupation,  alone  within  his  four 
walls,  he  soon  begins  to  fear  the  phantom  of  tedium,  of  lone- 
liness, of  inward  blankness.  My  experience  has  convinced 
me  that  this  paralyzing  stillness  is  much  more  enduring  in  its 
effect  than  the  shades  of  the  past.  Far  more  rarely  than  one 
would  imagine  does  the  memory  of  his  crimes  recur  to  the 
prisoner  to  torment  his  hours  of  solitude.  TVTiat  really  tor- 
tures the  convict  is  his  inability  to  make  the  slowly  creeping 
hours  fly.  Sundays  and  holidays,  the  days  of  rest  and  recrea- 
tion for  those  who  are  free,  are  thus  days  of  inward  torment  to 
the  convict,  and  it  is  with  feelings  of  joy  that  he  receives  per- 
mission to  work  again.  That  I  am  not  mistaken  in  this  view 
is  shown,  apart  from  occasional  remarks  of  the  convicts 
themselves,  by  a  very  common  experience.  Patients  whom  I 
was  temporarily  obliged  to  forbid  all  work,  often  begged, 
even  after  a  very  few  days,  in  spite  of  pain  and  fever,  to  be 
allowed  to  work  again,  saying  they  could  no  longer  endure 
sitting  still  unoccupied.  This  is  true  not  alone  of  those  in 
solitary  confinement.  Ordinary  prisoners  too,  who  were  not 
ill  enough  to  go  to  the  hospital,  could  not  long  endure  to  sit 
idle  among  the  others  who  were  working.  They  too  asked  for 
work. 

Thus  work  is  our  most  powerful  educational  means,  beside 
which  the  regular  instruction  which  all  prisoners  receive  up 
to  their  twenty-ninth  year,  is  of  secondary  significance.  In- 
struction gives  knowledge,  but  education  gives  the  ability  to 
a  convict  to  reinstate  himself  in  the  regulated  legal  life  of 


§  25]  THE  MEANS  OF  PUNISHJMENT  281 

the  State.  Therefore,  the  prison  oflScial  should  have,  not  the 
past,  but  the  future  of  the  criminal  before  his  eyes.  He  must 
be  familiar  with  the  past  only  to  this  extent,  that  he  knows 
the  prisoner's  descent  and  development,  career  and  crime, 
so  that  he  may  judge  with  what  kind  of  a  man  he  has  to  deal. 
Certainly  it  is  advisable  to  show  the  prisoner  his  reflection 
from  time  to  time,  that  he  may  know  who  he  is.  But  then 
it  is  necessary  to  remould  him,  to  clasp  the  hand  that  he  holds 
out  pleading  for  help,  to  show  him  the  way  that  he  must  go. 
The  prison  official  who  does  not  make  the  improvement  of 
the  criminal  his  highest  aim,  involuntarily  places  himself  on 
a  plane  with  the  dungeon-keeper  who  merely  carries  out 
another's   orders. 

This  improvement  and  correction  cannot,  apparently, 
be  combined  with  the  attempt  to  deter  by  intimidation; 
nor  should  it  be.  According  to  the  individuality  of  the  crim- 
inal,  there  is  enough  to  deter  him  from  further  crime  in  his 
absence  from  his  wife  and  children,  in  the  loss  of  the  saloon, 
of  tobacco,  of  freedom  of  movement,  in  the  compulsion  to  work, 
in  the  strict  discipline,  in  the  association  with  other  criminals, 
in  the  fact  of  being  punished  itself;  where  none  of  these  mo- 
tives is  sufficient,  treating  the  prisoner  as  if,  being  the  scum 
of  society,  he  were  unworthy  of  a  friendly  word,  will  also  be 
ineffective.  To  maintain  order  and  discipline  in  a  well- 
planned,  well-equipped,  and  well-organized  penal  institution 
is  not  difficult,  but  it  is  difficult  to  help  a  depraved  individual 
on  to  his  feet  again. 

Our  statistics  leave  no  room  for  doubt  that  the  carrying  out 
of  our  sentences  is  ineffective.  The  officials  of  German  penal 
institutions  themselves  bear  witness  to  this.  At  a  meeting  of 
the  Society  of  German  Prison  Officials,  in  1904,  in  Stuttgart, 
the  debated  question:  "Does  the  practical  experience  of 
prison  officials  show  the  present  penal  system  to  be  effective?" 


282  THE  STRUGGLE  AGAINST  CRIME  [§25 

was  answered  by,  "No."  Can  there  be  a  sharper  criticism 
of  the  way  in  which  our  sentences  are  carried  out  than  the 
words  of  the  Prussian  ordinance  of  September  19,  1895, 
which  gives,  as  a  reason  for  the  introduction  of  the  conditional 
sentence,  the  "justifiable  fear  of  the  injurious  efPect  of  impris- 
onment, because  of  the  convict's  association  with  depraved 
fellow-prisoners"?  This  criticism  touches  one  of  the  sorest 
points  of  our  present  system,  the  mixing  of  former  convicts 
with  persons  convicted  for  the  first  time,  of  mild,  occasional 
offenders  with  old  habitues  of  the  penitentiary.  The  young 
fellow  who  first  enters  prison  in  fear  and  trembling  is  soon 
initiated  into  things  which  he  should  never  know,  every 
feeling  of  remorse  is  smothered  by  the  mockery  that  would 
greet  its  expression;  he  is,  as  it  were,  at  a  high  school  of  vice. 
Anyone  who,  under  these  conditions,  is  not,  during  a  longer 
term  of  imprisonment,  infected,  shows  that  he  might  have  been 
corrected  without  imprisonment  at  all.  To  the  others  Krohne's 
words  ^  apply:  "A  sentence  served  in  common  confinement 
means  that  a  criminal  is  punished  for  his  offense  by  being 
further  instructed  in  crime  at  the  State's  expense." 

The  association  of  the  older  habitual  criminals  with  the 
beginners  in  crime  can  be  prevented  by  isolating  the  prisoners. 
The  so-called  " Pennsylvanian  system"  has  carried  this  prin- 
ciple to  an  extreme;  every  single  prisoner  is  kept  alone  during 
the  whole  period  of  his  imprisonment.  The  expense  of  build- 
ing the  necessary  cells  is  sufficient  by  itself  to  bring  about  a 
restriction  of  this  method;  the  requirement  of  silence,  existing 
oftener  on  paper,  it  is  true,  than  in  practice,  separate  dormi- 
tories with  common  work-rooms,  and  many  other  expedients, 
have  been  tried.  The  ideal  form  of  imprisonment  still  re- 
mains, however,  solitary  confinement. 

Many  erroneous  ideas  exist  in  regard  to  the  latter.  It  is 
^  "Lehrbuch  der  Gefangniskunde,"  p.  246. 


§25]  THE  MEANS  OF  PUNISHMENT  283 

quite  exceptional  now  for  the  principle  of  isolation  to  be  so 
carried  out  that  the  prisoner  is  concealed  from  his  companions 
by  a  mask,  or  that  he  takes  his  exercise  in  a  little  yard  all  by 
himself.  The  loneliness  of  the  prisoner  in  his  cell  is  interrupted 
by  the  keeper,  the  foreman,  by  recess,  school,  and  church. 
It  should  be  most  significantly  interrupted  by  the  visits  of  the 
higher  oflBcials,  who,  according  to  the  regulations,  are  obliged 
to  visit  every  prisoner  once  a  month.  These  visits  are  intended 
to  afford  the  opportunity  of  studying  the  criminal,  becoming 
more  intimate  with  him,  discovering  his  good  sides,  so  that  he 
may  receive  psychic  treatment,  calculated  really  to  correct 
and  improve  him.  It  is  to  be  regretted  that,  in  reality,  the 
visits  bear  quite  another  character.  No  one  will  imagine  that 
it  is  possible  to  become  intimately  acquainted  with  a  prisoner 
in  fifteen  minutes'  intercourse  a  month.  And  yet,  with  only 
400  individuals,  such  fleeting  visits  would  occupy  from  three 
to  four  hours  a  day.  No  official  has  so  much  time  at  his 
disposal . 

Solitary  confinement  is  not  suitable  for  every  prisoner; 
some  of  them  cannot  stand  the  loneliness,  although,  as  I  have 
already  explained,  I  do  not  believe  that  solitary  confinement 
can  produce  psychoses.  But,  apart  from  these  cases,  solitary 
confinement  is  subjectively  and  objectively  a  blessing  to  the 
unspoiled  and  to  those  who  are  not  entirely  ruined.  I  do  not 
share  the  common  fear  of  masturbation.  It  is  not  prevented 
by  common  confinement,  but  rather  supplemented  by  peder- 
astic  habits,  and  I  do  not  consider  the  injury  that  it  does 
to  be  very  great.  On  the  other  hand,  the  cell  has  the  advan- 
tage that  the  prisoner  can  be  treated  individually,  and  the 
personal  influence  of  the  officials  in  particular  can  be  better 
exercised  in  private  conversation. 

The  numberless  criminals  with  numerous  former  convic- 
tions, of  course,  do  not  require  isolation.    They  cannot  be  more 


284  THE  STRUGGLE  AGAINST  CRIME  [§25 

corrupt  than  they  are,  and  they  are  no  longer  corrigible. 
Common  work-rooms,  then,  suflBce  for  them,  but  separate 
sleeping-rooms  are  necessary  in  the  interest  of  morality. 

A  particularly  happy  idea  underlies  what  is  called  the 
"Irish  penal  system."  I  will  not  consider  its  defects,  because 
it  is  the  main  idea  that  seems  to  me  to  be  most  important. 
The  sentence  is  served  in  different  grades,  the  lot  of  the  pris- 
oner being  made  easier  from  grade  to  grade,  and  this  in  di- 
rect connection  with  his  behavior.  The  better  he  behaves, 
the  easier  does  his  punishment  become,  and  the  reward  for 
his  endeavors  is  in  the  form  of  a  leave  of  absence  before  his 
sentence  expires.  The  educational  element  lies  precisely  in 
the  prize  that  he  can  win  by  work  and  industry,  obedience  and 
understanding,  and  it  certainly  prevents  frequent  offenses 
against  the  discipline  of  the  institution,  better  than  the  pun- 
ishments provided  for  them. 

In  many  institutions  I  think  there  is  too  much  discipline 
and  too  little  training.  Reference  to  America  is  not  very  popu- 
lar, I  know,  but  the  remark  of  such  an  objective  observer  as 
Aschrott,^  that  prisoners  there  are  encouraged  to  behave  well 
by  being  granted  privileges,  rather  than  by  being  intimidated 
by  the  fear  of  disciplinary  punishments,  deserves  careful 
attention.  Judging  by  my  experience,  a  remitted  disciplinary 
punishment  is  more  effective  than  one  that  is  carried  out, 
a  warning  is  better  than  a  threat,  instruction  than  the  appli- 
cation of  disciplinary  punishments,  and  a  number  of  our  best 
superintendents  of  penal  institutions  agree  with  me.  With 
exaggerated  severity  and  discipline  it  is,  indeed,  possible  to 
attain  the  absolute  quiet  of  a  cemetery,  but,  underneath,  the 
fire  goes  on  smouldering,  and  the  breath  of  freedom  suflBces  to 
fan  the  sparks  into  a  new  flame,  more  dangerous  in  its  growth 
than  the  one  that  formerly  threatened  society. 

'  Aschrott,  "Strafen  und  Gefangniswesen  Nordamerikas,"  p.  12. 


§26]     SUSPENDED  SENTENCE  AND  PROBATION      285 

When  we  consider  the  defects  of  imprisonment,  we  are  struck, 
first  of  all,  with  the  fact  that  it  is  simply  a  mechanical  carrying 
out  of  the  sentence.  The  criminal  laws  lay  absolutely  no 
weight  on  what  the  penalty  is  to  accomplish  for  the  convict. 
The  officials  who  execute  the  sentence  are  deprived  of  all 
pleasure  in  their  occupation,  and  they  have  reason  to  be  glad 
if  they  merely  succeed  in  preventing  injury  being  done.  This 
must  be  changed,  and  it  can  be  changed  without  a  sentimental 
coddling  of  the  criminal  taking  the  place  of  strictness.  The 
gravity  of  the  execution  of  the  sentence  cannot  be  combined 
with  this  mechanical  absolution  of  it,  the  prisoner  must  be 
made  to  see  that  he  himself,  by  his  own  improvement,  can 
contribute  to  making  good  the  wrong  he  has  done;  if  he  canr 
not  do  this,  he  must  suffer,  so  that  others  need  not  suffer. 
Imprisonment  will  not  guarantee  legal  security  until  it  ac- 
tually deters  and  corrects  the  criminal,  and,  where  that  is 
impossible,  cuts  him  off  from  society. 

§  26.  Indemnification,  Suspended  Sentence,  and 

Probational  Release 

Short  terms  of  imprisonment  have  gradually  become  a  great 
menace  to  public  legal  security.  Just  as  a  medicine  loses 
its  effect  if  steadily  used,  so,  too,  the  abuse  of  the  penalty 
of  a  few  days'  imprisonment  is  without  good  results,  dulls 
respect  for  the  laws,  and  undermines  the  feeling  that  pun- 
ishment is  something  exceptional,  something  that  should  be 
remote  from  the  life  of  every  respectable  citizen.  The  dread 
of  punishment  vanishes.  Moreover,  such  a  few  days  or  weeks 
in  prison  is  of  no  use  as  a  corrective  measure.  At  least,  the 
officials  to  whom  is  left  the  carrying  out  of  the  sentence  must 
refrain,  busy  as  they  are,  from  attempting  to  arouse  a  feeling 
for  the  right.  Nevertheless,  short  sentences  cannot  be  dis- 
pensed with,  even  when  we  consider  the  punishment  solely 


286  THE  STRUGGLE  AGAINST  CRIME  [§26 

in  its  relation  to  the  individuality  of  the  offender.  It  is  im- 
possible to  proceed  with  the  heavy  artillery  of  month-long 
imprisonment  in  the  case  of  comparatively  harmless  offenses. 
Two  ways  out  of  the  dilemma  offer  themselves:  indemnifi- 
cation and  the  suspended  sentence. 

Current  legal  views  all  look  upon  it  as  a  grave  defect  that 
the  State,  in  imposing  a  penalty,  leaves  the  injured  person 
entirely  out  of  consideration,  and  does  not,  with  the  sentence, 
impose  also  the  obligation  to  indemnify  the  injured  subject. 
I  know  well  that  that  is  what  the  civil  courts  are  for,  but 
this  separation  has  great  disadvantages.  If,  to-day,  a  laborer 
is  so  severely  injured  by  a  ruffian  that  he  is  unable  to  work 
for  weeks,  he  can  bring  an  action  for  damages.  And  they  will 
certainly  be  awarded  him,  but  the  award  will  merely  exist 
on  paper;  the  other's  lack  of  property  will  prevent  indem- 
nification; in  fact,  if  the  injured  man  sues  after  the  conviction, 
he  has  to  bear  the  costs  himself.  This  is  more  than  unjust. 
Ferri  ^  describes  this  process,  which  he  calls  a  "grotesque 
comedy,"  sharply  and  strikingly  in  these  words:  "The  State, 
which  is  responsible  for  not  having  been  able  to  prevent 
crime,  and  to  give  a  better  guarantee  to  the  citizens,  arrests 
the  criminal  (if  it  can  arrest  him  —  and  70%  of  discovered 
crimes  go  unpunished) .  Then,  with  the  accused  person  before 
it,  the  State,  'which  ought  to  concern  itself  with  the  lofty 
interests  of  justice,'  does  not  concern  itself  with  the  victims 
of  the  crime,  leaving  the  indemnification  to  their  prosaic 
'private  interest'  and  to  a  separate  invocation  of  justice. 
And  then  the  State,  in  the  name  of  eternal  justice,  exacts 
from  the  criminal,  in  the  shape  of  a  fine  payable  into  the  pub- 
lic treasury,  a  compensation  for  its  own  defense  —  which  it 
does  not  secure,  even  when  the  crime  is  only  a  trespass  upon 
private  property!"  Carefully  considered,  the  person  injured 
'  Ferri,  "Criminal  Sociology,"  p.  223. 


§  26]     SUSPENDED  SENTENCE  AND  PROBATION       287 

or  robbed  has  even  to  pay  for  the  maintenance  of  his  assailant, 
for  the  cost  of  the  administration  of  justice  is  borne  by  the 
peaceful  citizen,  not  by  the  penurious  law-breaker. 

In  my  opinion,  it  would  increase  respect  for  the  laws  con- 
siderably if  the  State  would  acknowledge  its  obligation  to  pro- 
vide for  the  restoration  of  the  legal  state,  not  only  as  regards 
criminal,  but  also  as  regards  civil  law.  The  criminal  should 
be  obliged  to  make  good  the  injury  by  the  work  of  his  hands, 
and  to  this  the  State  should  compel  him.  This  will  not  be 
universally  feasible,  but  it  would  be  perfectly  possible  pre- 
cisely in  the  case  of  slight  offenses.  This  penalty  would  better 
conform  both  to  the  purpose  of  deterrence  and  of  correction 
than  does  the  short  term  in  jail.  Such  a  sentence  means, 
at  present,  nothing  but  a  couple  of  days  of  idleness  —  work 
for  such  a  short  time  is  not  worth  while  —  in  a  warm  room, 
with  simple  but  sufficient  food.  The  representative  of  the 
theory  of  retribution,  too,  might  agree  with  our  demand, 
which  makes  compensation  for  the  damage  done  more  possi- 
ble than  does  the  reckoning  of  a  bodily  injury,  or  of  a  ruined 
object  of  value,  in  terms  of  days  in  prison. 

The  habitual  criminal  would  certainly  fear  such  a  punish- 
ment more  than  a  few  days  in  jail,  and  the  obligation  to  in- 
demnify will  impress  more  deeply  upon  him  that  he  must 
respect  the  property  and  the  person,  the  honor  and  the  peace, 
of  his  fellow-man.  In  the  case  of  the  occasional  criminal, 
the  procedure  would  be  still  simpler.  His  punishment  might 
confidently  be  postponed  and  the  obligation  imposed  to  in- 
demnify within  a  suitable  time.  The  necessity  of  saving  for 
others  will  long  be  a  warning  to  him  that  will  keep  him  from 
relapse,  better  than  would  a  few  days'  imprisonment,  which, 
if  he  happens  to  have  a  careless  nature,  he  will  soon  forget. 

The  reasonableness  of  this  idea  cannot  be  disputed,  but  it 
is  a  question  whether  it  could  be  carried  out;  yet  it  should  be 


288  THE  STRUGGLE  AGAINST  CRIME  [§26 

possible  to  find  some  way  that  would  admit  of  the  combina- 
tion of  these  two  branches  of  the  law.  Perhaps  it  might  also 
make  the  "suspended  sentence"  appear  more  endurable  to 
some  of  the  theorists  who  cling  steadfastly  to  expiation.  The 
suspended  sentence  emanates  from  the  idea  that  it  is  not 
always  a  sign  of  a  criminal  mind  if  a  man  falls  into  the  hands 
of  the  criminal  judge.  Negligence,  intoxication,  irritability, 
necessity,  even  recklessness  and  temptation,  may  lead  to 
crime,  without  our  being  justified  in  casting  stones  at  the 
offender.  If  his  act  is  such  that  money  can  be  regarded  as 
compensation,  he  will  perhaps  try  of  his  own  accord  to  make 
the  damage  good.  Otherwise  he  will  become  subject  to  legal 
punishment,  although,  perhaps,  even  the  judge  —  I  again 
call  to  mind  Feuerbach's  words  on  page  252  —  is  convinced 
that  a  warning  would  be  sufficient.  But  why  should  the  pris- 
ons be  filled  unnecessarily,  why  should  the  man  who  is  suffi- 
ciently punished  for  his  act  by  remorse  and  the  obligation, 
imposed  either  by  himself  or  by  the  State,  to  pay  damages, 
be  still  further  punished?  The  interest  of  the  community 
at  large  is  better  served  by  a  suspension  of  the  punishment. 

The  forms  in  which  we  find  it  in  literature  and  in  practice 
are  very  different.  In  England  the  suspension  of  the  punish- 
ment, where  there  is  a  reasonable  prospect  of  good  behavior, 
has  gradually  become  more  general.  It  was  used  long  before 
its  codification  by  the  "Probation  of  First  Offenders  Act"^ 
in  1887.  The  act  provides :  "  In  every  case  in  which  a  person 
is  found  guilty  of  theft,  fraud,  or  any  other  crime  that  is  pun- 
ishable by  imprisonment  for  not  more  than  two  years,  and 
in  which  no  former  conviction  is  proved  against  this  person, 
the  court  before  which  he  or  she  is  found  guilty  may,  in  con- 
sideration of  the  youth,  character,  and  former  life  of  the 

^  Mumm,  "Die  Gefangnisstrafe  und  die  bedingte  Verurteilung  im  moder- 
nen  Strafrecht,"  Hamburg,  1896,  J.  F.  Richter,  p.  27. 


§26]     SUSPENDED   SENTENCE   AND   PROBATION       289 

offender,  and  in  consideration  of  the  insignijBcant  nature  of 
the  deed,  and  by  reason  of  any  extenuating  circumstances 
under  which  the  act  was  committed,  order,  at  its  discretion, 
that  he  or  she  be  dismissed  on  his  or  her  recognizance,  with 
or  without  surety,  to  appear  on  summons,  to  hear  the 
judgment,  at  any  time  that  the  court  may  determine,  and 
in  the  mean  time  to  keep  the  peace  and  maintain  a  good 
demeanor."  ^ 

In  reaUty,  England  does  not  Hmit  itself  to  those  cases  in 
which  the  conditions  are  fulfilled,  but  makes  the  widest 
possible  use  of  the  suspended  sentence.  In  the  years  1894 
to  1896,  of  the  27,323  persons  who  were  tried  by  jury,  which 
in  England  tries  about  half  of  the  cases  of  recidivists,  2109 
were  released  on  their  recognizances,  with  or  without  sureties. 
This  proof  of  the  freedom  of  the  English  judge,  who  is  not  so 
closely  bound  by  laws  as  is  the  German,  shows  at  the  same 
time  that  the  measure  is  obviously  held  in  high  estimation  in 
England.  The  results  are  good.  Of  the  18,492  persons  who 
were  conditionally  sentenced  during  the  years  1888-1896, 
only  1564,  that  is  8.4%,  failed  to  stand  the  test  of  probation. 

While,  in  England,  only  the  guilt  is  established,  and  no 
actual  sentence  ^  passed,  the  probation  system  as  it  existed 
in  Boston  as  long  ago  as  in  1869-1870  merely  postpones  the 
execution  of  the  sentence  imposed.  In  Belgium,  at  the  end  of 
the  probation  period  the  sentence  is  regarded  as  never  having 
been  passed,  whereas,  generally,  it  is  only  the  execution  of 
the  penalty  that  is  remitted,  the  judgment  and  penalty  re- 
maining standing. 

All  these  modifications  of  the  suspended  sentence  are  out-  . 
growths  of  the  same  principle :  the  postponement  of  the  execu- 

*  Kaarlo  Ignatius,  "Die  bedingte  Verurteilung  in  England"  (ZStW.  XXI, 
746). 

*  Ignatius,  "Die  juristische  Natur  der  bedingten  Verurteilung"  (ZStW. 
XXIII.  250). 


290  THE  STRUGGLE  AGAINST  CRIME  [§26 

tion  of  the  sentence  in  the  hope  that  the  delinquent  will  not 
offend  again  in  the  future.  It  is  assumed  that  for  weak 
natures  a  threatening  punishment  is  a  more  effective  warning 
from  a  relapse,  the  prospect  of  a  reward  in  the  shape  of  the 
remission  of  the  penalty  a  stronger  motive  for  good  behavior, 
than  an  absolved  penalty. 

The  psychological  correctness  of  this  supposition  cannot  be 
doubted.  The  convicted  person  knows  that  it  depends  on 
his  behavior  whether  he  is  to  be  a  criminal  who  has  already 
served  a  sentence  or  a  respectable  man  with  a  clear  record; 
he  knows  that  he  can  make  good  the  recklessness  of  a  moment 
by  a  blameless  life,  that  if  he  fails  in  his  good  behavior,  the 
sentence  will  still  have  to  be  served. 

A  stronger  motive  for  upright  Uving  than  the  reward  of  a 
remitted  sentence  cannot  be  easily  imagined;  if  the  man  on 
probation  succeeds  in  rehabilitating  himself,  the  conscious- 
ness that  he  has  not  been  given  up,  that  he  has  been  able  by 
his  own  efforts  to  live  down  his  offense,  will  bring  with  it  the 
conviction  that  he  is  able  to  overcome  temptations;  he  has 
won  back  his  self-confidence,  and,  instead  of  a  depraved  crim- 
inal, the  State  has  gained  a  useful  citizen. 

After  long  hesitation,  Germany  has  also  introduced  a  modi- 
fied form  of  the  remission  of  penalties,  conditional  pardon. 
Since  January  1,  1903,  the  "Bundesrat"  has  been  agreed  on 
the  principle  of  this  measure,  so  that  at  least  partial  uni- 
formity throughout  Germany  in  administering  it  may  be 
brought  about.^  Conditional  pardon  is  to  be  apphed  mainly, 
though  not  exclusively,  to  juveniles  who  have  not  already 
been  convicted.  The  severity  of  the  penalty  is  not  to  be 
determinative  for  the  applicability  of  conditional  pardon. 
Of  the  greatest  significance  is  the  progress  evidenced  in  the 

1  Klee,  "Die  bedingte  Begnadigung  in  den  deutschen  Bimdesstaaten" 
(ZStW.  XXIV,  69). 


§26]     SUSPENDED   SENTENCE  AND  PROBATION       291 

fact  that  the  court  that  imposes  the  sentence  is  to  have 
a  voice  in  the  decision.  Hitherto  the  decision  has  lain  en- 
tirely with  the  authorities  that  see  to  the  carrying  out  of 
the  sentence.  I  purposely  emphasize  the  word  "decision," 
for  we  can  scarcely  speak  in  seriousness  of  the  Crown's 
exercising  the  right  to  pardon.^  The  report  of  the  office 
of  the  public  prosecutor  largely  determines  the  decision.  But 
I  cannot  see  why  the  office  of  the  public  prosecutor  should 
be  better  fitted  to  judge  than  the  court  that  passes  the  sen- 
tence. The  present  practice  I  consider  to  be  indicative  of  a 
transitional  state,  leading  to  the  suspended  sentence.  If  a 
court  is  trusted  to  determine  the  just  punishment  for  a  crime, 
taking  fully  into  consideration  the  individuality  of  the  ofiFender, 
it  should  also  be  considered  capable  of  determining  in  what 
cases  a  postponement  of  the  punishment  may  be  granted  in 
the  hope  of  being  able  to  remit  the  sentence  altogether.  It 
is  my  conviction  that  the  conditional  sentence  should  be  regu- 
lated by  the  national  laws  and  that  we  are  fully  justified  in 
demanding  this. 

According  to  the  decision  of  the  "Bundesrat,"  the  period 
of  probation  is  to  be  shorter  than  the  term  required  for  the 
lapsing  of  the  penalty  in  conformity  with  the  statute  of  lim- 
itations. In  general,  it  will  be  one  year  at  least,  in  the  case  of 
penalties  that  lapse  after  two  years,  and,  in  the  case  of  those 
that  lapse  after  more  than  two  years,  the  minimum  probation 
will  be  for  two  years.  These  periods  are  very  short;  at  pres- 
ent, good  behavior  for  a  year  is  sufficient  to  spare  the  convicted 
person  the  execution  of  the  sentence.  But  the  individual  who 
recidivates  after  only  a  year  has  passed,  thus  shows  himself 
to  be  so  dangerous  to  public  safety  that  a  remission  of  the 
punishment  in  his  case  would  be  out  of  place.    Why  should  not 

'  6Va/  2M  Dohna,  "Zur  Statistik  der  bedingten  Begnadigung"  (MSchr. 
KrimPsych.  I,  52). 


292  THE  STRUGGLE  AGAINST  CRIME  [§26 

abundant  use  be  made  of  such  a  valuable  method  of  correct- 
ing and  training  a  person,  and  his  inner  self -discipline  be  pro- 
moted as  long  as  possible?  In  the  case  of  mild  offenses,  I 
believe  that  the  punishment  should  be  postponed  for  at  least 
two  years,  and  where  graver  crimes  are  concerned,  that  the 
sword  of  Damocles  should  hang  above  the  offender's  head 
for  not  less  than  three  years,  a  constant  warning  against 
failure  and   a  constant  incentive  to  good  behavior. 

The  less  the  crime  indicates  evil  qualities  in  the  offender's 
character,  the  more  certainly  can  we  reckon  on  success.  Those 
who  will  fail  will  thus  show  more  clearly  than  under  the  pres- 
ent procedure  that  the  usual  motives  which  should  prevent 
crime  are  insufficient;  other  methods  will  have  to  be  tried 
with  them.  Lengthening  the  period  of  probation  will  decrease 
the  number  of  those  who  have  been  able  to  stand  the  test  as 
long  as  the  probational  period  was  short,  but  the  result  will 
then  be  more  valuable  in  aiding  us  to  progress  in  the  direction 
of  avoiding  a  punishment  wherever  something  better  can  be 
used. 

Is  conditional  pardon  really  something  better,  then?  This 
must  still  be  regarded  as  an  open  question,  at  least  if  we  con- 
sider statistics.  The  relation  of  the  favorably  concluded, 
to  the  unfavorably  concluded,  cases,  in  the  course  of  the  last 
five  years,  has  averaged  4:1.  As  the  number  of  recidivists 
during  three  and  a  half  years,  the  time  used  as  a  period  of 
comparison  by  the  statistical  department,  amounts  only  to 
13%,  the  result  of  the  conditional  pardon  appears  at  the  first 
glance  to  be  quite  unfavorable.  And  yet  that  is  scarcely  the 
case.  Conditional  pardon  does  not  apply  to  offenses  that  can 
be  met  by  a  reprimand  or  a  fine;  this  cuts  out  a  number  of 
comparatively  harmless  offenders,  who  are  unlikely  to  recidi- 
vate. Moreover,  the  statistics  of  recidivists  apply  to  both 
juveniles  and  adults,   those  of  conditional  pardon  only  to 


§26]     SUSPENDED  SENTENCE  AND  PROBATION       293 

juveniles.^  And,  finally,  the  nature  of  the  offenses  seems 
to  me  to  be  decisive.  The  tendency  to  recidivate  we  find  to 
be  most  frequent  in  the  case  of  theft,  which  is  the  crime  of 
29.1%  of  all  recidivists.^  And  theft  is  also  the  chief  crime 
of  juveniles,  who  far  surpass  adults  in  it. 

I  am  far  from  concluding  that  conditional  pardon  has  al- 
ready proved  to  be  a  success  with  us  in  Germany.  Further 
and  more  detailed  statistics  are  required  before  that  can  be 
decided.  In  any  case,  I  believe  it  necessary,  in  many  cases, 
to  supplement  conditional  pardon  with  special  state  education 
or  protective  supervision,  which  must  certainly  be  seriously 
considered  for  most  of  these  juveniles.^  For  instability,  of 
which  crime  is  an  eloquent  proof,  is  certainly  not  corrected 
by  conditional  pardon  alone.  This  might  sooner  be  the 
case  with  adults,  who  have  a  better  understanding  of  the 
seriousness  of  the  situation  than  have  immature  juveniles. 

Parole  or  conditional  liberation  is  based  on  the  same 
psychological  pre-suppositions  as  the  conditional  or  sus- 
pended sentence.  Section  23  of  the  Penal  Code  reads: 
"Persons  condemned  to  a  longer  penitentiary,  or  prison, 
penalty  may,  when  they  have  served  three-quarters, 
which  must  not  be  less  than  one  year,  of  their  sentence, 
if  they  have  behaved  well  during  this  time,  be  released  on 
parole  with  their  consent."  The  "Bundesrat"  demanded 
that  there  should  also  be  proofs  of  improvement,  but  the 
"Reichstag"  struck  out  this  condition.  Nevertheless,  by  way 
of  ordinance,  improvement  has  been  made  a  condition  of 
release  on  parole,  in  Prussia  at  least.  The  prison  director  may 
recommend  such  release  only  "  if  he  is  convinced  that  the  pris- 

'  Graf  zu  Dohna,  "Zur  Statistik  der  bedingten  Begnadigung  '  (MSchr. 
KrimPsych.  II,  252). 

^  Kriminalstatistik  fUr  das  Jahr  1901,  II,  p.  24. 

'  Franz  von  Liszt,  "Der  Misserfolg  der  bedingten  Begnadigung"  (ZStW. 
XXV.  237). 


294  THE  STRUGGLE  AGAINST  CRIME  [§26 

oner  has  improved  and  will  not  abuse  the  opportunity  offered 
him  to  begin  a  new,  honest,  and  law-abiding  life."  I  am  the 
last  person  to  disapprove  of  this  condition,  which  alone  would 
conform  to  the  protection  of  society  that  I  demand,  but  it 
seems  to  me  that  in  Prussia  judgments  are  formed  from 
entirely  different  points  of  view  from  those  current  in  most  of 
the  other  federated  States.  In  the  years  between  1894-1895 
and  1903-1904  conditional  release  was  recommended  only  in 
the  case  of  1796  of  the  Prussian  convicts  subject  to  the  Min- 
istry of  the  Interior.  The  recommendation  of  the  adminis- 
trations of  the  penitentiaries  was  acted  on  by  the  super- 
visory board  of  justice  in  only  656  cases;  that  is,  0.86% 
of  the  total  number  of  75,756  convicts!  The  fact  that 
their  recommendations  are  so  seldom  complied  with,  makes 
the  prison  directors  slow  to  advise  the  release  on  parole 
of  a  prisoner,  as  I  know  from  my  own  experience,  and  in 
many  cases  where  there  is  good  reason  to  believe  that  a  man 
might  safely  be  released  on  parole,  no  such  recommendation 
is  made,  because  it  is  fairly  sure  to  meet  with  refusal.  It  is 
not  difficult  to  prove  how  wrong  this  method  of  applying 
such  a  promising  measure  is.  In  Wiirttemberg,  in  the  course 
of  23  years,  of  the  11,845  prisoners  in  Ludwigsburg,  not  less 
than  1287  (=  10.9%)  were  released  on  parole.^  The  privilege 
had  to  be  recalled  in  only  2.4%  of  the  cases !  This  success  must 
be  regarded  as  especially  remarkable,  for  Krauss  ^  has  rightly 
drawn  attention  to  the  difficulty  clumsy  police  supervision 
puts  in  the  way  of  the  rehabilitation  of  the  released  convict.^ 

^  Schwandner,  "Aus  der  Praxis  der  vorlaufigen  Entlassung"  (MSchrKrim. 
Psych.  I,  364). 

^  Krauss,  "Der  Kampfgegen  die  Verbrechensursachen."  1905,  p.  422. 

*  Only  recently  an  instruction  of  the  Prussian  Minister  of  the  Interior,  of 
May  11,  1904,  sharply  impressed  upon  the  police  authorities  that  they  should 
exercise  supervision  over  paroled  convicts  in  such  a  way  that  their  "progress 
should  not  be  interfered  with  nor  they  themselves  exposed  to  public  contempt." 


§  26]    SUSPENDED    SENTENCE    AND    PROBATION      295 

The  low  number  of  those  who  failed  shows  that  prison  directors 
well  know  how  to  make  a  proper  selection.  The  decision  as 
regards  the  petition  is  in  the  hands  of  the  Ministries  of 
Justice,  to  which  prisoners  in  Bavaria  and  Wurttemberg 
must  apply  if  their  requests  to  be  released  on  parole  are 
refused. 

That  conditional  release  has  an  educational  value  that 
extends  far  beyond  the  period  of  probation,  is  shown  by 
experiences  in  Southern  Germany.  Investigations  of  the 
later  life  of  those  conditionally  released  proved  that  only  11.4% 
in  Bavaria,  16.1%  in  Wurttemberg,  were  convicted  at  any 
subsequent  time.  Schwandner's  ^  figures  appear  to  be  high, 
when  we  consider  that,  within  the  first  five  years  from  the 
time  of  the  first  convictions,  only  15.6%  had  to  be  sentenced 
again,  according  to  the  German  criminal  statistics.  But  this 
refers  to  all  those  convicted,  even  of  harmless  offenses, 
while  Schwandner's  figures  include  only  recidivists  over  thirty 
years  of  age  who  had  been  deprived  of  their  civil  rights, 
thus  only  a  group  of  dangerous  criminals. 

It  is  very  regrettable  that  within  the  same  country  a  national 
law  should  be  so  variously  treated  in  the  way  it  is  applied, 
as  is  the  case  with  conditional  release  in  Prussia  and  in  the 
other  States  in  the  federation.^  And  yet  there  can  scarcely 
be  any  doubt  as  to  what  is  the  best  method.  I  consider  also 
the  saving  in  the  cost  of  maintaining  prisoners  a  great  advan- 
tage. In  Wurttemberg,  Sichart  ^  found  that  in  thirteen  years 
108,016  marks  had  been  saved  in  consequence  of  782  paroles, 
of  which  only  1%  resulted  in  failure.    This  material  advantage, 

1  Loc.  dt.  p.  365. 

^  In  addition  to  this  abundant  use  of  release  on  parole,  sentences  are  fre- 
quently shortened  by  pardon  in  Wurttemberg.  This  was  the  case,  from  1896 
to  1902,  with  1.48%  of  the  penitentiary,  5.87%  of  the  prison,  convicts! 

'  von  Sichart,  "Die  Freiheitsstrafe  im  Anklagezustand  und  ihre  Verteidi- 
gung,"  1904,  p.  49. 


296  THE  STRUGGLE  AGAINST  CRIME  [§26 

which  is  of  great  importance  in  view  of  the  tremendous  cost 
of  carrying  out  sentences,  would  not  be  worth  mentioning 
if  other  objections  to  the  parole  weighed  against  it.  But  this 
is  not  the  case. 

I  have  already  spoken  of  what  an  incentive  to  the  convict 
it  is,  to  have  the  prospect  of  being  able  to  shorten  his  sentence 
if  he  succeeds  in  gaining  the  confidence  of  his  supervisors. 
He  can  do  so  only  by  industry  and  obedience.  It  speaks  well 
for  the  thorough  and  careful  supervision  and  judgment  of  the 
prison  officials  in  Southern  Germany,  that,  in  spite  of  the 
abundant  use  of  §  23,  they  have  had  so  few  failures.  This 
puts  an  end  to  the  frequently  expressed  opinion  that  by 
hypocrisy  and  cant  it  is  easy  for  a  prisoner  to  deceive  the 
officials,  A  man  whose  psychological  knowledge  merely 
suffices  to  maintain  strict  discipline  cannot,  of  course,  be  a 
good  judge  of  improvement.  Experience  teaches  us  that  it 
is  just  the  worst  elements  in  the  institution,  the  regular 
customers,  who  often  behave  best,  and  know  most  surely 
how  to  steer  clear  of  the  dangerous  points  in  the  regulations 
of  the  institution,  which  threaten  in  all  directions.  The  fact 
that  conditional  release  can  be  granted  only  to  prisoners  who 
have  served  at  least  a  year,  prevents  the  man  who  has  any 
knowledge  of  men  —  and  every  prison  official  should  be  such 
a  one  —  from  being  deceived.  If  it  is  his  duty  to  consider 
in  every  case  the  possibility  of  granting  conditional  release, 
it  will  certainly  increase  the  care  with  which  he  observes 
every  prisoner.  And  the  latter  once  more  feels  himself  to  be 
master  of  his  fate;  confronted  by  a  task  at  which  he  failed 
when  he  committed  his  crime,  he  knows  the  prize  which  he 
may  win.  How  different  must  be  his  feelings  then  from  those 
when  he  is  conscious,  even  during  his  worst  behavior  and 
when  he  resists  all  attempts  to  help  him  on  to  a  better  path, 
that  the  day  of  his  release  will  be  the  day  of  his  relapse,  and 


§27]  ABOLITION  OF  FIXED  TERMS  297 

that,  though  all  the  officials  must  be  aware  of  this,  the  gates 
of  the  prison  will  open  to  him  on  the  day  fixed. 

No  blind  confidence  is  reposed  in  the  conditionally  released 
prisoner.  His  personal  liberty  is  subject  to  a  number  of  seri- 
ous restrictions,  he  knows  himself  to  be  under  constant  super- 
vision, and  whenever  thoughts  of  a  new  crime  come  into  his 
mind,  the  certainty  of  his  recall  immediately  recurs  to  him 
as  a  warning.  Here,  too,  I  think  we  fail  to  take  advantage  of  a 
valuable  means  of  combat,  when  we  make  the  possibility  of 
recall  extend  only  over  the  duration  of  the  rest  of  the  sentence, 
except  when  the  latter  is  very  long  in  any  case.  The  situation 
is,  after  all,  this:  that  a  released  convict  who  has  behaved 
well  for  two  years,  for  instance,  will  be  very  careful  not  to 
fail  in  the  third  year,  because  he  would  then  have  to  serve 
the  whole  remainder  of  the  sentence;  he  will  beware  of  risking 
the  whole  tedious  work  of  two  years  by  a  single  reckless  act. 
The  longer,  then,  we  extend  this  right  of  recall,  the  easier  will 
it  be,  by  means  of  this  hard  test,  to  separate  the  actually 
improved  offender  from  the  socially  dangerous  one.  The 
shortest  time  that  should  be  required  seems  to  me  to  be  three 
years  in  the  case  of  first  convictions,  five  years  where  there 
have  been  several  former  convictions. 

§  27.  The  Abolition  of  Fixed  Terms  of  Punishment 

If  a  surgeon  should  have  a  patient  sent  him  by  another 
doctor  with  the  request  to  amputate  the  patient's  leg  at  a  cer- 
tain place  because  of  a  dangerous  tumor,  the  surgeon  would 
ignore  the  most  elementary  rules  of  medicine  if  he  should 
accede  to  the  other's  request  without  first  convincing  himself 
of  the  necessity  of  the  operation.  The  same  course  is  required 
of  a  prison  official  who  is  entrusted  with  the  carrying  out  of  a 
prisoner's  sentence,  day  in  and  day  out.  The  court  turns  over 
to  him  a  prisoner  with  the  definite  instructions  to  keep  him 


298  THE  STRUGGLE  AGAINST  CRIME  [§27 

for  so  and  so  many  years.  Even  if  the  most  careful  observa- 
tion of  the  individuality  of  the  prisoner  convinces  the  official 
that  the  judge  has  erred  in  the  length  of  the  penalty  imposed, 
he  has  no  right  to  interfere;  there  is  no  way  —  except  pardon 
or  conditional  liberation  —  in  which  the  sentence  can  be 
shortened  by  even  a  day,  and,  of  course,  no  way  in  which  it 
can  be  lengthened. 

An  official  who  is  interested  in  those  committed  to  his  care 
must  soon  lose  this  interest.  Knowledge  of  circumstances 
influencing  the  deed,  careful  observation,  long  and  intimate 
conversations,  have  shown  him  that  it  is  only  a  chain  of  un^ 
fortunate  external  circumstances  that  has  made  a  certain  man 
a  criminal.  He  is  convinced  that  the  moral  attitude  of  the 
unfortunate  person  is  good,  and  that  it  is  unnecessary  torture 
to  keep  him  longer  in  prison,  that  it  may  perhaps  even  mean 
injury  to  his  body  and  mind.  But  he  can  do  nothing  to  help 
him,  he  cannot  give  the  man  who  is  once  trapped  his  liberty 
a  day  before  the  time  set,  he  cannot  return  him  to  the  family 
he  supports,  cannot  save  the  State  the  cost  of  carrying  out  a 
sentence  that  has  become  unnecessary. 

Still  more  painful  for  the  thinking  official  must  be  the  con- 
sciousness that  he  must  set  at  liberty  a  man  who  does  not 
deserve  it.  If,  occasionally,  a  lunatic  who  has  been  released 
from  an  asylum  as  harmless  turns  out  not  to  have  been  cured, 
and  commits  a  murder  or  a  sexual  crime,  the  press  rises  in  a 
mighty  protest  against  the  inefficiency  of  alienists.  In  many 
cases  it  is  really  hardly  possible  to  judge  whether  an  insane 
person  may  become  dangerous,  whereas  it  can  be  prophesied 
only  too  surely  that  certain  discharged  convicts  are  a  menace 
to  public  safety. 

Most  of  the  Prussian  prisoners  mentioned  on  page  202, 
of  whom  the  officials  believe  that  they  could  not  reinstate 
themselves  in  law-abiding  social  life,  have  probably  been  set 


§27]  ABOLITION  OF  FIXED  TERMS  299 

at  liberty  since  the  time  of  this  decision.  In  spite  of  the 
firm  conviction  that  it  is  only  a  question  of  time  till  the  dis- 
charged criminal  breaks  into  a  house  again,  attacks  his  fellow- 
men  with  a  knife,  or  assaults  our  wives  and  children,  the  di- 
rector must  open  the  door  of  the  prison  for  him  punctually  to 
the  minute.  A  dangerous  dog  must  be  kept  chained;  woe 
to  the  owner  who  omits  to  see  that  this  is  done!  But  a  far 
more  dangerous  man  is  "set  on  mankind"  with  the  State's 
permission. 

Before  me  lies  the  record  of  a  man  of  forty  who  is  at  present 
serving  his  eighth  sentence,  all  of  the  sentences  being  imposed 
for  sexual  assaults  on  children  under  fourteen.  His  first 
sentence  of  six  months  was  in  the  year  1886,  his  last  was  in 
June,  1901.  Thus  in  fifteen  years  the  same  man  has  been 
sentenced  eight  times  for  the  same  crime,  the  time  he  has 
spent  in  prison  amounting  in  all  to  nine  years;  often  one 
offense  is  separated  from  the  next  only  by  the  time  that 
his  detention  in  a  penal  institution  made  the  commission  of 
another  crime  impossible.  He  will  soon  be  discharged  again. 
What  child  will  be  the  next  victim  of  his  dangerous  instincts?  ^ 
Another,  a  boy  of  sixteen,  was  sentenced,  in  1897,  on  account 
of  his  youth,  to  only  six  months'  imprisonment  for  attempted 
rape.  A  year  later  he  was  sentenced  for  a  repetition  of  the 
same  crime  to  a  year's  imprisonment.  Then  follows  a  sentence 
of  three  months  for  damage  to  property,  and,  shortly  after, 
a  sentence  of  two  years'  imprisonment  for  attempted  rape  and 
indecent  handling.  Thus,  within  a  period  of  less  than  five 
years,  this  fellow  of  barely  twenty -one  has  served  three  years 
and  nine  months  in  prison;  in  his  case,  too,  there  can  scarcely 

*  I  have  purposely  left  the  words  of  the  first  edition  as  they  stood.  Oa 
the  7th  of  December,  1902,  the  convict  was  released.  Four  weeks  later 
he  assaulted  a  thirteen-year-old  girl!  (Ziemke,  "Der  Schutz  der  Gesellschaft 
vor  den  vermindert  Zurechnungsfahigen "  (MSchrKrimPsych.  I,  424).) 


300  THE  STRUGGLE  AGAINST  CRIME  [§27 

be  any  doubt  that  he  will  shortly  again  appear  before  the 
court  after  having  once  more  attacked  the  sexual  honor  of  a 
child  or  a  woman.  Another  man  was  sentenced  in  1895  to 
nine  months  for  attempted  rape,  in  1898  to  three  months  for 
assault  and  battery,  and  in  1898  again  to  two  years  and 
seven  months  in  the  penitentiary  in  accordance  with  §  176  H  3. 
On  January  24,  1901,  he  was  discharged;  on  June  2  of  the  same 
year  he  assaulted  a  child  of  twelve,  and  was  sentenced  for 
attempting  the  crime  of  §  176  H  3  and  for  insult  to — four 
months'  imprisonment! 

Every  child,  every  woman,  who  falls  a  victim  to  such  a  man 
is  a  crying  accusation  against  the  State  that,  in  order  to  main- 
tain the  phantom  of  "just  retribution"  in  respect  to  the  law- 
breaker, exposes  the  most  precious  possession  of  our  women, 
their  sexual  honor.  I  have  purposely  chosen  examples  from 
among  sexual  criminals,  although  the  same  phenomenon  of 
immediate  relapse  is  found  equally  among  thieves  and  crim- 
inals of  violence.  I  should  like  to  see  the  adherent  of  the  theory 
of  expiation  to  whom,  if  his  own  wife  or  his  own  child  were 
brought  home  to  him  ravished,  the  idea  would  not  occur,  that 
it  would  be  better  permanently  to  confine  a  man  whose  con- 
stantly repeated  attempts  at  rape  prove  his  incorrigibility. 
Must  we  try  the  untenableness  of  our  present  criminal  proced- 
ure on  our  own  bodies  before  we  can  realize  it?  Are  we  struck 
blind  to  what  is  daily  before  our  eyes?  There  must  be  an 
end  made  of  conditions  that  guarantee  the  criminal  his  return 
to  freedom  where  he  will  find  the  opportunity  once  more  to 
gain  a  few  years  more  punishment,  but  which  leave  the  peace- 
ful citizen  without  protection! 

The  oflficial  Prussian  statistics  conclude  their  remarks  on  the 
probability  of  relapse  with  the  words:  "According  to  this, 
all  those  inmates  of  our  penal  institutions  who  have  served 
three  sentences,  one  of  which  was  of  at  least  six  months' 


§27]  ABOLITION  OF  FIXED  TERMS  301 

duration,  must  be  regarded  as  lost;  at  least  it  cannot  be  hoped 
that  their  sojourn  in  the  institution  will  again  make  them 
useful  members  of  society.  Having  established  this  fact, 
the  statistician  must  pause;  the  rest  lies  with  the  criminologist 
and  the  legislator." 

But  how  can  the  criminologist  and  the  legislator  proceed 
so  as  to  do  justice  to  both  problems  at  once:  to  protect 
society  from  these  dangerous  criminals,  and  to  treat  these 
persons  in  such  a  way  that  the  number  of  those  who  become 
socially  fit  is  increased.'* 

To  adapt  the  penalty  to  the  individuality  of  the  offender, 
and  to  carry  this  through  to  the  final  consequences;  that  is 
our  problem.  And  the  abolition  of  the  fixed  term  of  punish- 
ment is  its  solution. 

The  fixed  term  of  punishment  becomes  unnecessary  as  soon 
as  deterrence,  correction,  and  protection  form  the  basis  of 
our  criminal  law.  "We  shall  keep  this  tabular  calculation  of 
the  penalty  that  is  invoked  by  a  crime,  an  offense,  a  misde- 
meanor, as  long  as  the  old  idea  of  revenge,  rooted  in  the  bar- 
baric childhood  of  the  human  race,  continues  to  dominate 
our  views  of  criminal  justice.  Just  so  long  will  the  judge, 
uninfluenced  by  the  'warm-hearted  humanity'  of  a  grand 
and  unified  'Weltanschauung,'  continue  to  enter,  opposite 
the  credit  side  of  criminal  action,  his  debits  in  fines,  disgrace, 
corporal  punishment,  and  imprisonment,  that  proper  account 
may  be  kept  of  the  just  order  of  this  world;  just  so  long  will 
the  unfortunate  individual  who,  on  the  impulse  of  the  moment, 
has  yielded  to  the  pressure  of  poverty  and  misery,  collapse 
under  the  burden  of  the  sentence  that  deprives  him,  once  for 
all,  of  the  best  years  of  his  life,  to  turn  him  out  again  a  broken, 
joyless,  and  friendless  man  into  the  struggle  for  existence; 
just  so  long,  finally,  will  the  habitual  criminal  gleefully  count 
the  days  till  the  prison  doors  must  open  to  let  him  out,  only 


302  THE  STRUGGLE  AGAINST  CRIME  [§27 

to  receive  him  again  after  his  brief  but  eventful  enjoyment 
of  his  freedom.    Summum  jus  summa  injuria!"  ^ 

The  idea  of  making  a  prisoner's  punishment  depend  on  his 
behavior  suggests  itself  so  readily  that  we  cannot  be  surprised 
at  finding,  already  in  the  eighteenth  century,  an  advocate  of 
the  "indeterminate  sentence."  ^  At  that  time  the  question, 
what  was  to  be  done  with  the  more  harmless  criminals,  was 
forced  into  the  background  by  the  problem  of  dealing  with 
the  incorrigibles.  The  fruit  of  Klein's  endeavors  was  §  5  of 
the  criminal  law  section  of  the  "Allgemeines  Landrecht": 
"Thieves  and  other  criminals  who  may  become  dangerous  to 
the  community  because  of  their  corrupt  tendencies,  even 
after  they  have  served  their  sentences,  shall  not  be  released 
until  they  have  proved  that  they  are  able  to  support  them- 
selves honestly."  Also,  in  the  order  of  the  Prussian  Cabinet 
of  February  1,  1799,  the  same  idea  recurs:  "I  have  noticed 
that  very  many  criminals,  and,  among  them,  even  some  of 
those  who  have  been  set  free  by  my  pardon,  have  immediately 
again  committed  some  crime.  For  the  most  part  this  may 
be  due  to  the  complete  depravity  of  the  criminal,  and  then 
no  other  means  remains  of  protecting  property  from  thieves 
and  robbers  than  to  imprison  the  latter  for  life."  ' 

But  just  as  this  order  recommends  correction  as  a  means  of 
preventing  immediate  relapse,  just  as  it  desires,  that  is,  every- 
thing to  be  tried  "before  the  law  can,  with  justice,  ordain 
this  (life-long  imprisonment),"  so,  too,  did  Klein  and  the 
juristic  faculty  in  Halle  that  supported  him.  It  says  in  a 
judgment  of  the  year  1797:  *  "In  order  to  provide  the  pris- 
oner with  motives    for    his    improvement,  his  life-long   im- 

^  Kraepelin,  "Die  AbschaflFung  des  Straf masses,"  p.  17. 
^  von  Liszt,  "E.  F.  Klein  und  die  unbestimmte  Verurteilung"  (Strafrecht- 
liche  Aufsatze  und  Vortrage,  II,  148). 

'  Rosenfeld,  "Zweihundert  Jahre  Fiirsorge,"  Berlin,  1905,  p.  30. 
*  von  Liszt,  loc.  cit.  p.  150. 


§27]  ABOLITION  OF  FIXED  TERMS  303 

prisonment  shall  be  made  dependent  in  its  quantity  on  his 
future  behavior." 

The  treasure  that  a  few  people  thus  tried  to  dig  up  still 
lies  buried  to-day  under  a  mass  of  regulations  which  take 
everything  into  account  except  the  psychological  character 
of  the  criminal.  And  yet  how  different,  how  much  firmer, 
harmonious,  and  —  better  —  the  administration  of  justice 
would  be  under  the  influence  of  a  criminal  law  that  would  not 
blindly  strike  down  the  occasional  criminal  and  be  weak  with 
the  incorrigible.  The  effect  of  the  indeterminate  sentence 
would  be  very  different  on  both.  The  person  who  is  convicted 
for  the  first  time,  if  the  conditional  sentence  is  not  applicable 
in  his  case,  will  enter  prison  with  the  honest  desire  for  better- 
ment. Remorse  and  his  own  conscience  have  shaken  him  to 
the  depths;  he  has  made  the  best  resolutions.  And  now  he 
knows  that  he  must  win  back  his  freedom  himself,  that  he 
must  prove,  under  the  new  conditions  under  which  he  is  forced 
to  live,  that  he  is  inwardly  strong.  He  fights  hard  to  win 
his  release,  and  he  does  win  it;  still  for  several  years  the  pos- 
sibility of  his  recall  hangs  over  him  as  a  sign  of  what  he  has 
overcome,  as  a  warning  for  the  future.  And  if  he  is  not  un- 
faithful to  his  good  resolutions,  the  State  has  one  respectable 
member  more. 

The  careless,  happy-go-lucky  individual,  too,  who  now 
serves  his  few  months  in  comparative  indifference,  would  have 
the  majesty  of  the  law  brought  home  to  him  in  quite  another 
way.  With  the  better  psychological  training  of  the  prison 
officials,  it  must  be  possible  to  recognize  the  superficiality  of 
pretended  remorse;  the  careless  fellow  too  probably  resolves 
on  improvement,  but  he  does  not  really  improve.  With  the 
indeterminate  sentence,  the  few  months  that  he  would  have 
to  serve  under  the  present  law  pass,  and  still  no  move  is  made 
to  release  him.    In  slow  monotony  day  follows  day,  constantly 


304  THE  STRUGGLE  AGAINST  CRIME  [§27 

urging  him  to  introspection,  bringing  home  to  him  the  fact 
that  only  a  change  in  himself  can  set  him  at  liberty.  The 
earnestness  of  life  breaks  the  wings  of  airy  carelessness.  When 
he  then  finally  arrives  at  discretion,  and  the  gates  of  the  prison 
close  behind  him,  firmer  resolutions  to  behave  well  will  accom- 
pany him.  The  recall  threatens  him,  too,  and  he  knows  that 
it  is  no  empty  threat;  he  has  learnt  the  full  meaning  of  pun- 
ishment and  fears  it.  In  his  case  we  shall  perhaps  accomplish 
no  more  than  this,  no  real  betterment,  but  even  this  guarantees 
public  peace  better  than  is  done  at  present. 

And  finally,  the  incorrigible  criminal,  is  he  to  spend  his 
life  entirely  without  hope,  behind  prison  walls  .'*  If  the  pro- 
tection of  society  is  not  possible  in  any  other  way,  then, 
certainly.  After  all,  our  present  legal  order  too  imprisons 
men  for  life,  some  of  whom,  as  their  behavior  when  pardoned 
shows,  are  quite  harmless.  No  one  hesitates  to  demand  that 
a  dangerous  lunatic  should  be  confined  for  life.  Why  not  the 
criminal  also.f^  I  know  a  convict,  who  has  lately  gone  insane, 
who  served  seven  years  at  one  time,  eight  years  at  another, 
in  the  penitentiary  for  rape,  with  only  a  short  interval  between 
the  two  sentences.  Set  at  liberty,  within  a  few  weeks,  he 
assaulted  two  women  on  successive  days,  and  was  again 
sentenced  to  fifteen  years  in  the  penitentiary  for  rape.  The 
only  difference  between  permanent  imprisonment  and  the 
present  practice  is,  that  now  the  State  gives  such  a  man  just 
so  much  time  as  he  needs  to  earn  his  punishment  again,  that 
the  State  now  requires  the  health  and  honor  of  several 
blameless  young  girls  to  be  sacrificed  before  it  feels  justified 
in  taking  what  is  the  most  natural  course  in  the  world. 

I  even  dare  to  utter  a  hope  that  apparently  contradicts 
the  belief  I  have  expressed  In  the  incorrigibility  of  many 
criminals.  I  believe  that  such  a  penal  system  would  perhaps 
save  many  a  man  who  is  now  sure  to  be  ruined.    As  I  have 


§27]  ABOLITION  OF  FIXED  TERMS  305 

already  emphasized  a  number  of  times,  I  do  not  believe  that 
incorrigibility  is  the  result  of  innate  criminal  tendencies,  but 
of  the  inability,  due  in  many  cases  to  defects  of  mind  and 
education,  to  live  under  the  present  social  conditions  without 
trespassing  on  the  legal  spheres  of  others.  Why,  then,  should 
not  unremitting  care  succeed  in  kindling  a  spark  of  decency 
in  the  man  who  is  given  up  as  lost,  and  why  should  it  be  im- 
possible to  educate  him  slowly  and  painstakingly,  after  all? 
At  present  this  is  most  difficult,  because  the  criminal  knows 
when  his  punishment  will  come  to  an  end;  but  when  once  his 
release  depends  upon  himseK,  the  consciousness  of  this  fact 
will  perhaps  awaken  in  him  the  desire  to  improve,  which  it 
will  then  be  possible  to  cultivate  and  train  by  purposeful  care 
and  years  of  discipline.  But  if  all  efforts  to  transform  him 
fail,  there  is  no  alternative,  absolutely  none,  to  isolation 
from  society. 

But  who  is  to  decide  when  the  moment  has  come  for  release 
or  permanent  confinement?  "The  practical  carrying  out  of 
the  separation  of  offenders  into  occasional,  habitual,  and  incor- 
rigible criminals,"  contended  Frank,^  "is  opposed  by  the  fact, 
that  the  decision  cannot  rest  with  the  judge,  but  must  be  left 
to  the  prison  officials.  Such  a  consequence,  however,  —  in 
other  words,  the  admission  of  the  indeterminate  judgment  — 
will  not  be  acceptable  for  the  next  few  centuries,  because  at 
present  we  lack  the  possibiUty  of  looking  into  a  man's  heart, 
and  because  the  officials  entrusted  with  the  execution  of  sen- 
tences have  not  the  confidence  of  the  people,  which  is  an  in- 
dispensable condition  of  any  interference  with  human  liberty." 

Both  objections  are  justified,  but  —  only  under  the  rule 
of  the  present  criminal  law.  Under  a  future  system  the 
judge  would  not  be  only  a  connecting  link  between   the 

1  (Mitt,  der  I.  K.  V.  VI,  577.)  I  think  I  am  not  wrong  in  assuming  that 
Frank  no  longer  so  positively  rejects  this  idea. 


306  THE  STRUGGLE  AGAINST  CRIME  [§27 

examining  magistrate  and  the  prison  official,  would  not 
merely  establish  the  question  of  guilt.  In  contrast  to  his 
present  activity,  he  would,  in  fact,  have  most  difficult 
duties.  By  deeper  consideration  of  the  external  causes  of 
a  crime  and  finer  psychological  analysis  of  the  criminal's 
individuality,  he  would  have  to  decide  in  what  cases  suspen- 
sion of  the  penalty  might  be  tried.  He  would  have  to  deter- 
mine under  what  conditions  indemnification  must  be  made, 
and  to  see  to  it  that  justice  is  done  to  the  injured  person. 
He  would  have  to  select  those  for  whom  treatment  and 
education  offer  more  prospect  of  improvement  than  does 
punishment. 

This  is  already  done  with  juveniles  to-day  and,  to  some 
extent,  with  the  insane.  But  with  these,  the  number  of  per- 
sons is  by  no  means  exhausted,  for  whom  prison  promises 
as  httle  success  as  rational  treatment  promises  great;  above 
all,  it  is  the  drunkards  and  partially  responsible  persons  who 
must  be  more  intelligently  provided  for. 

The  criminal  judge,  who  is  confronted  by  the  problem  of 
making  a  psychological  report  of  the  offender,  finds  this  a 
more  valuable  and  stimulating  opportunity  to  show  and  de- 
velop his  abilities  than  the  present  situation,  wherein  he  is 
compelled  to  almost  mechanical  activity  in  judging  beggars 
and  vagabonds,  ruffians  and  thieves,  and  wherein  little  is 
demanded  of  his  intellect  except  in  the  case  of  fine  differences 
between  fraud  and  embezzlement,  and  such  like,  —  unless, 
indeed,  even  then  the  Supreme  Court  ("Reichsgericht") 
relieves  him  of  the  necessity  for  thought.  Moreover,  the 
activity  of  the  judge  will  not  stop  with  delivering  over  to  the 
prison  officials  an  offender  for  whom  he  believes  a  serious 
warning  and  thorough  education  to  be  necessary.  He  will 
be  partly  responsible  for  such  a  delinquent's  further  career. 

The  training  of  our  judges  will,  in  the  future,  and  this 


§27]  ABOLITION  OF  FIXED  TERMS  307 

can  be  safely  prophesied  to-day,  include  temporary  service 
in  penal  institutions.^  Even  with  our  present  laws  it  is  a  cry- 
ing disgrace  that  the  judge  imposes  penalties  the  significance 
of  which  he  is  quite  unable  to  grasp.  Of  course,  a  few  visits 
to  some  prison  will  not  suffice,  nor  the  demonstration  and 
examination  of  a  few  particularly  grave  crimes.  It  would  be 
almost  worse  than  the  present  state  of  affairs  if  the  belief 
should  be  aroused  that  it  is  possible  in  this  superficial  way  to 
penetrate  into  the  methods  and  effect  of  the  carrying  out 
of  the  sentence,  to  penetrate,  above  all,  into  the  depths  of  a 
human  soul.  No,  the  future  judge  will  have  to  do  his  share  of 
the  practical  work,  will  have  to  study  the  prisoners  in  detail, 
learn  to  know  them  well  enough  to  report  whether  a  certain 
offender  is  to  be  conditionally  released,  whether  he  is  worthy 
of  confidence,  whether  he  has  failed  to  improve. 

In  addition,  the  judge  will  have  to  supervise  the  execution 
of  the  sentence  he  has  imposed  and  to  aid  in  deciding  what  is 
to  be  done  with  the  prisoner.  This  is  already  done  in  Baden 
and  Wiirttemberg.  In  Wiirttemberg  the  prison  boards 
include  high  officials  in  the  departments  of  justice,  adminis- 
tration, medicine,  both  Protestant  and  Catholic  clergymen, 
and  even  members  of  mercantile  houses;  in  Baden  the  en- 
larged conference  of  officials  has  at  its  head  a  director  or 
councillor  of  the  superior  court,  besides  several  citizens  as 
members.  Through  the  co-operation  of  the  judge  and  several 
laymen,  preferably  those  who  are  at  the  same  time  the  repre- 
sentatives of  provident  societies  (compare  page  237),  the 
danger  which,  experience  has  shown,  threatens  most  adminis- 
trative boards,  the  feeling  of  superiority,  would  best  be 
avoided.  "We  prison  officials  easily  develop  into  autocrats 
and  infallible  persons,"  says  Krohne. 

'  von  Jagemann,  "  Bedeutung  der  Gefangnislehrkunde  fiir  die  Strafrechts- 
pflege"  (MSchrKrimPsych.  I,  377). 


308  THE  STRUGGLE  AGAINST  CRIME  [§27 

In  1897  the  annual  meeting  of  the  International  Union 
of  Criminal  Law  passed  the  following  resolutions,  written  by 
Seuflert  and  Krohne: 

1.  In  order  to  ensure  the  rational  carrying  out  of  sentences, 
the  supervisory  prison  boards  must  appoint  suitable  persons 
to  take  part  regularly  in  the  conferences  of  the  head  officers 
in  the  larger  prisons  and  penal  institutions.  These  persons 
must  include  members  of  the  provident  organs. 

2.  Women  as  well  as  men  must  be  appointed  for  the 
women's  prisons. 

3.  The  persons  thus  appointed  shall  have  the  right  to  visit 
prisoners  without  witnesses  being  present. 

4.  They  shall,  especially,  be  consulted  in  regard  to  interrup- 
tion of  sentences,  conditional  release,  and  pardon. 

In  Prussia,  it  is  true,  the  aid  of  persons  who  are  not  con- 
nected with  the  execution  of  the  sentence  is  possible  only  in  a 
slight  degree.  In  spite  of  the  warm  advocacy  of  Krohne, 
who  promises  the  confidential  agents  of  provident  societies 
that  they  shall  be  helped  in  every  possible  way,  and  recog- 
nizes their  right  "to  go  from  cell  to  cell  and  speak  pri- 
vately with  the  prisoners,"  these  persons  are  not  able  at 
present  to  do  much.  Their  eflForts  fail  because,  as  Krohne 
admits,  prison  officials  have  a  "strong  aversion"  to  this  new 
institution. 

This  passive  resistance  must  be  removed,  and  this  will  be 
the  more  easily  possible,  the  more  important  the  duty  of  exe- 
cuting the  sentence  becomes. 

The  far-reaching  plans  for  the  abolition  of  fixed  sentences 
must  lead  to  a  further  elaboration  of  the  resolutions  of  the 
International  Union  of  Criminal  Law.  The  co-operation  of 
public  prosecutors,  of  the  courts,  and  of  the  administrative 

*  von  Rohden,  "Einige  wichtigere  Probleme  der  Entlassenenfursorge" 
(MSchrKrimPsych.  II,  191). 


§  27]  ABOLITION  OF  FIXED  TERMS  309 

boards,  must  be  more  extensively  assured,  a  co-operation,  of 
course,  that  is  not  limited  to  participation  in  conferences. 

The  principal  work,  it  is  true,  will  and  must  fall  to  the  offi- 
cial entrusted  with  executing  the  sentence.  He  can  do  justice 
to  his  task  only  if  he  has  a  thorough  and  all-round  preliminary 
education.  Wulffen^  does  not  consider  any  man  fitted  for 
penal  institution  service  who  has  not  "been  through  the  mill 
of  public  prosecutorship  and  court  practice,"  and  even  such 
a  one  must  not  be  "only  a  jurist,  which  is  equivalent  to  a 
formalist."  I  consider  it  questionable  whether  good  institu- 
tional directors  can  be  drawn  from  juristic  circles  alone. 
But  I  fully  subscribe  to  his  further  words:  "Education, 
psychology,  and  sympathy,  these  are  the  three  intensified 
demands  that  we  must  make  of  penal  measures  in  the  future. 
With  military  discipline,  bureaucratic  formalism,  and  knowl- 
edge of  a  trade  alone,  nothing  is  won."  Only  "really  peda- 
gogically  talented  persons  are  suited  for  penal  institution 
service."  The  very  best  officials  are  only  just  good  enough 
for  the  realization  of  the  penalty.  Let  me  once  more  draw 
attention  to  Krohne's  words:  "Even  if  you  have  the  best  law, 
the  best  judge,  the  best  sentence,  and  the^  prison  official  is 
not  efficient,  you  might  as  well  throw  the  statute  into  the 
waste  basket  and  burn  the  sentence!" 

The  abolition  of  fixed  terms  of  punishment,  the  conditional 
release,  —  all  hope  for  greater  public  security  stands  and  falls 
with  the  methods  by  which  the  sentence  is  carried  out.  Where 
the  prisoner  can  be  effectively  prepared  for  a  better  future, 
that  is  the  place  to  apply  the  lever. 

^  Widffen,  "  Ref ormbestrebungen  auf  dem  Gebiete  des  StrafvoUzugs," 
Dresden,  1905. 


310  THE  STRUGGLE  AGAINST  CRIME  [§  28 

§  28.  The  Treatment  of  Juveniles  and  Partially 
Responsible  Persons 

Under  our  present  laws  the  first  criminal  act  brings  the 
unfortunate  creature  who  commits  it,  if  he  has  completed  his 
twelfth  year,  before  the  bar  of  justice.  In  judging  of  the 
injury  done  by  public  trials,  we  shall  do  well  to  distinguish 
between  two  groups  of  criminal  children :  those  who  could  not 
withstand  a  particularly  tempting  opportunity,  inwardly  un- 
spoiled; and  those  who,  having  grown  up  in  a  criminal  en- 
vironment, corrupt  from  their  earliest  youth,  know  only  the 
fear  of  punishment,  of  the  police,  but  not  the  dread  of  doing 
wrong.  For  a  child  of  the  first  group  a  trial  is  a  stigma  that 
it  will  have  to  bear  even  if  acquitted,  the  detrimental  impres- 
sion of  which  will  be  the  greater,  the  more  unspoiled  the  child 
is.  And  not  only  the  child  suffers,  but  his  family,  which  is 
often  very  little  to  blame.  At  school  the  child  is  despised 
by  his  mates,  watched  with  suspicion  by  the  teachers;  per- 
fectly excusable  faults  are  regarded  as  signs  of  criminal 
tendencies.  A  sensitive  nature  may  be  ruined  by  the  weight 
of  this  pressure.  In  the  case  of  such  a  child  —  it  need  scarcely 
be  said  —  a  trial  is  the  less  necessary,  because  his  character 
can  be  far  better  strengthened  through  educational  measures. 

It  is  very  different  with  the  other  group  of  children,  found 
particularly  in  large  cities,  who  grow  up  uncontrolled  and 
selfish.  For  them  the  first  court  trial  means  the  first  step 
towards  independence.  In  spite  of  his  mental  and  physical 
immaturity,  the  child  feels  himself  to  be  grown  up  from  then 
on,  for  he  has  been  treated  as  an  adult  by  the  court.  He  has 
been  the  hero  of  an  act  of  which  the  State  has  taken  notice, 
and  with  a  feeling  of  self-importance  he  waits  for  the  news- 
paper reports  of  the  trial.  This  feeling  of  having  played  a 
part  in  public  life  is  not  restricted  to  the  child  himself.  His 
comrades  regard  him  with  a  certain  respect,  —  varying  in 


§28]  TREATMENT  OF  JUA^NILES  311 

degree,  it  is  true.  His  particular  chums  admire  him.  But 
it  would  be  a  mistake  in  child-psychology  to  believe  that  his 
example  only  frightens  and  repels  still  innocent  children.  A 
child's  imagination  is  excited  by  everything  unusual;  there 
is  an  air  of  something  exceptional  about  the  youthful  of- 
fender, even  to  the  most  unspoiled  boy,  and  his  feeling  of 
contempt  is  tinged  with  respect  for  the  independence  of  his 
"grown-up"  comrade. 

The  damage  that  the  presence  of  such  a  child  in  a  school 
does  is  beyond  estimation.  And  even  if,  after  a  public  trial, 
the  child,  acquitted,  is  not  sent  back  to  school,  but  is  made 
the  subject  of  corrective  education,  his  name,  his  act,  and  his 
behavior  at  the  trial,  will  long  remain  the  theme  of  conver- 
sation among  his  school-fellows.  The  effect  of  this  may  be 
that,  where  the  soil  is  fruitful,  it  makes  the  first  breach  in  not 
yet  firmly  founded  moral  views. 

-  The  compulsory  school  age  ends  at  fourteen;  until  then 
the  child  needs  school  training.  After  that  no  one  thinks  of 
regarding  a  boy  as  mentally  and  physically  mature  because 
he  has  left  school,  because  his  social  independence  is  beginning. 
Why  is  not  the  criminal  child  left  to  the  discipline  of  the 
school,  at  least  up  to  this  age  limit?  And  if  this  discipline 
fails,  if  consideration  for  the  other  pupils  makes  the  criminal 
child's  removal  from  them  necessary,  why  cannot  he  immedi- 
ately become  the  subject  of  special  State  education,  without 
first  going  through  a  public  trial  or,  worse,  a  prison  sentence? 

Punishment  is  a  two-edged  sword.  As  long  as  it  menaces 
the  evil-doer  from  afar,  it  may  perhaps  deter,  but  as  soon  as 
he  has  become  acquainted  with  it,  its  effect  is  dulled;  the  sec- 
ond punishment  is  much  less  feared  than  the  first.  This  ap- 
pears only  too  clearly  in  the  statistics  of  adult  recidivists; 
how  much  more  must  the  threat  of  punishment  lose  its 
eflBcacy  if  a  person  has  already  become  acquainted  with  it  in 


312  THE  STRUGGLE  AGAINST  CRIME  [§28 

his  youth,  if  it  belongs  to  the  childhood  memories  of  the 
growing  boy  or  girl. 

As  far  as  possible,  juveniles  serving  sentences  should  be 
separated  from  older  criminals.  This  separation  is  not  always 
feasible.  Moreover,  association  with  more  experienced  com- 
panions of  the  same  age  often  suffices  to  strangle  every  vestige 
of  decency,  remorse,  good  resolutions.  Thus,  I  found  little 
girls  in  whom  menstruation  had  not  yet  begun  who  were 
astonishingly  well  informed  about  all  kinds  of  perverted  sexual 
practices.  They  had  been  taught  by  a  precocious  and  early 
corrupt  companion  of  the  same  age,  in  prison.  Rigid  enforce- 
ment of  solitary  confinement  might  perhaps  have  prevented 
this,  but  during  detention,  while  awaiting  trial,  and  in  the 
small  district  jails,  there  is  ample  opportunity  for  the  sowing 
of  such  seed,  however  careful  may  be  the  method  of  confine- 
ment after  conviction. 

Von  Liszt  ^  thus  sums  up  the  conclusion  we  must  draw 
from  such  a  state  of  affairs:  "If  a  child  commits  a  crime, 
and  we  let  him  alone,  the  probability  that  he  will  commit 
another  crime  is  not  so  great  as  when  we  punish  him."  We 
should  not  punish  him,  but  neither  should  we  let  him  alone. 
The  law  for  special  State  education  empowers  us  at  pres- 
ent, after  the  execution  of  the  sentence,  to  prevent  the  con- 
tinuance of  a  criminal  mode  of  life  by  seeking  to  make  up 
the  deficiencies  in  the  child's  former  education  and  train- 
ing. Now,  what  part  does  a  few  months'  imprisonment  play 
in  the  life  of  a  twelve  or  thirteen  year  old  offender,  in  com- 
parison to  the  special  education  that  is  continued  up  to  his 
twentieth  year?  In  case  of  acquittal  on  account  of  lack  of 
comprehension,  the  law  allows  special  education  to  be  begun 
even  earlier.    Why,  then,  the  comedy  of  a  public  trial?    Only, 

1  von  Liszt,  "Die  Kriminalitat  der  Jugendlichea"  (Strafrechtliche  Auf- 
satze  und  Vortrage,  II,  339). 


§28]  TREATIVIENT  OF  JUVENILES  313 

perhaps,  to  establish  the  fact  that  the  child  did  understand 
the  consequences  of  its  act,  after  all?  This  does  not  seem  to  me 
worth  while,  as  long  as  it  is  still  possible  to  prove  the  child's 
comprehension  even  after  he  has  been  in  a  school  for  the 
feeble-minded!  This  could  certainly  be  settled  in  the  pre- 
liminary examination,  in  order  to  put  an  end  to  the  disgrace 
of  having  children  play  a  public  part  in  our  courtrooms. 

A  child  does  not  belong  before  the  criminal  judge,  nor  in 
prison.  The  whole  question  should  resolve  itself  into  this:  up 
to  what  age  is  special  education  to  be  applied,  instead  of  the 
criminal  law?  The  International  Union  of  Criminal  Law  ^ 
has  decided  in  favor  of  the  fourteenth  year  as  the  age  at  which 
punishment  should  be  admissible,  rejecting  the  original  pro- 
posals made  by  Krohne,  von  Liszt,  and  Appelius,  that  the 
sixteenth  year  should  be  adopted,  a  measure  that  was  also 
supported  by  one-third  of  the  prison  directors  invited  to  report 
on  this  question. 

Before  the  child  has  left  school  he  cannot,  of  course,  be 
treated  as  an  adult;  he  must  be  treated  as  a  child.  Hence 
the  fourteenth  year  is  the  very  lowest  that  could  be  set.  At 
that  age  the  growing  individual  enters  upon  the  years  of 
adolescence,  the  years  when  "inward  stability  is  lacking,"  ^ 
which  must  not  be  measured  by  the  adult  standard.  To  bring 
these  peculiar  conditions  of  the  age  of  puberty  into  harmony 
with  the  criminal  laws,  requires  far  more  time  than  the  judge 
can  devote  to  the  individual  case.  But  if  he  could,  instead  of 
imposing  the  short  sentence  that  the  law  prescribes,  he  would 
almost  always  declare  long  training  and  education  to  be  neces- 
sary. There  are  also  exceptions,  cases  in  which  it  is  so  clear 
that  the  offense  is  merely  a  bit  of  mischief,  that  the  mildest 

»  Mitteilungen  der  I.  K.  V.  Ill,  327. 

^  August  Cramer, "  Entwicklungsjahre  und  Gesetzgebung, "  Gottingen,  1902, 
W.  Fr.  Kastner,  p.  7. 


314  THE  STRUGGLE  AGAINST  CRIME  [§28 

treatment  is  appropriate.  OflScial  recognition  of  such  a  pos- 
sibility has  found  expression  in  "conditional  pardon."  In 
general,  only  juveniles  convicted  for  the  first  time,  whose 
penalty  would  not  exceed  six  months'  imprisonment,  can  be  so 
pardoned.  Those  who  are  more  dangerous  are  threatened 
with  special  State  training  after  their  sentences,  obviously 
because,  in  most  cases,  the  sentence  is  not  considered  suffi- 
cient. Thus,  it  only  remains  to  be  desired  that  the  treatment 
of  juvenile  law-breakers  should  be  legally  and  uniformly 
regulated.  The  programme  might  be  briefly  summed  up 
thus:  neglected  children  require  compulsory  or  special  State 
education  even  when  they  have  not  offended  against  the 
criminal  laws.  Criminal  prosecution  is  admissible  only 
after  the  sixteenth  year  has  been  completed;  trials  are  not 
to  be  public.  Instead  of  a  penalty  being  imposed,  a  juve- 
nile may  always  be  required  to  undergo  special  State  edu- 
cation. Where  mild  offenses  are  concerned,  the  sentence 
is  to  be  suspended  till  the  completion  of  the  twenty-first 
year,  and  then  remitted  if  the  offender's  behavior  has  been 
good.  If  those  conditionally  sentenced  offend  a  second  time, 
special  State  education  is  to  be  prescribed.  In  general,  the 
programme  agrees  with  that  of  the  International  Union  of 
Criminal  Law,  except  that  I  should  like  to  see  it  in  its  original 
form,  and  not  as  finally  accepted,  principally  because  the  treat- 
ment there  provided  for  those  between  fourteen  and  sixteen 
is  psychologically  more  correct  than  that  recommended  in 
the  final  resolutions. 

Of  particular  importance,  it  seems  to  me,  is  the  treatment 
of  those  persons  who  stand  midway  between  mental  health 
and  mental  disease,  for  whom  it  is  rightly  demanded  the  term 
"partially  responsible"^  should  be  used.    Our  criminal  law, 

1  Compare,  in  this  connection,  my  explanations  in  Hoches  "Handbuch  der 
gerichtlichen  Psychiatrie,"  p.  34;  von  Liszt,  "Schutz  der  Gesellschaft  gegen 


§28]  TREATMENT  OF  JUVENILES  315 

in  contrast  to  that  of  former  German  States  and  many  foreign 
countries,  does  not  recognize  this  condition.  But  gradually 
the  conviction  has  gained  ground  that,  besides  insane  persons 
and  normal  persons,  there  are  numerous  individuals  who 
cannot  be  judged  by  the  same  standards  as  these  others. 
A  law  recognizing  partial  responsibility  was  rejected  by  the 
"Reichstag,"  on  the  ground  that  the  term  "extenuating  cir- 
cumstances" could  be  made  to  cover  all  the  cases  to  which 
the  measure  under  discussion  would  apply. 

I  will  not  stop  to  point  out  that  the  term  "extenuating  cir- 
cumstances" does  not  exist  where  the  most  serious  crimes  are 
concerned,  nor  dwell  on  the  fact  that  the  judge  takes  the 
place  of  the  man  who  would  be  most  competent  to  judge  of 
mental  conditions  that  are  so  difficult  to  recognize,  the 
physician;  it  is  enough  to  emphasize  here  that  the  effect 
of  "extenuating  circumstance"  is  exactly  opposite  to  that 
demanded  by  a  rational  policy  towards  criminals.  According 
to  our  present  laws,  the  partially  responsible  person  receives 
a  milder,  that  is,  a  shorter  sentence.  This  may  knock  away 
the  last  moral  support  that  he  has.  The  consciousness  of 
getting  off  with  a  light  sentence  decreases  his  fear  of  punish- 
ment, which  may  have  been  the  only  motive  that  restrained 
him  from  criminal  acts.  But  even  if  he  does  not  regard  the 
mildness  of  the  judgment  as  a  sort  of  license  for  his  acts, 
yet  the  fact  remains,  that  the  short  sentence  is  useless.  I 
have  often  heard  such  psycho-pathological  persons,  conscious 
of  their  social  uselessness,  ask  for  long  sentences,  in  the  — 

gemeingefahrliche  Geisteskranke  und  vennindert  Zurechnungsf ahige  "  (MSchr. 
KrimPsych.  I,  8);  Ilafter,  "Die  Behandlung  der  vermindert  Zurechnungs- 
fahigen  im  Vorentwurf  zu  einem  schweizerischen  Strafgesetzbuch "  (MSchr. 
KrimPsych.  I,  77);  Bleuler,  "Zur  Behandlung  der  Gemeingefahrlicher " 
(MSchrKrimPsych.  I,  92);  Hoegel,  "Die  Behandlung  der  Minderwertigen " 
(MSchrKrimPsych.  I,  333);  Kraepelin,  "Zur  Frage  der  gemindert  Zurech- 
nungsf ahigen "  (MSchrKrimPsych.  1,  478). 


316  THE  STRUGGLE  AGAINST  CRIME  [§28 

perhaps  vain  —  hope  that  their  feeble  energy  might  be 
strengthened,  and  certainly  with  the  true  sense  that  a  short 
sentence  would  have  no  enduring  eflPect  on  them. 

How  much  more  advisable  is  the  proposal  to  make  the  pun- 
ishment of  such  persons,  not  shorter,  but  different,  in  quality. 
This  desired  change  in  the  punishment  would  have  to  be 
adapted  to  the  peculiarity  of  every  person,  sometimes  being 
therapeutic,  sometimes  educational,  in  character,  under  some 
circumstances  leading  to  removal  from  society,  and  confine- 
ment in  a  suitable  institution. 

"La  responsabilite  proportionelle  n'est  toutefois  acceptable 
que  sous  la  reserve  formelle  d'une  sorte  de  penalite  speciale," 
wrote  Legrand  du  Saulle  as  long  ago  as  1874.  And,  really, 
the  main  point  of  the  whole  question  lies  here.  Legal  recogni- 
tion of  partial  responsibility  is  only  desirable  if  accompanied 
by  changes  in  the  punishments  imposed.  What  kind  of  changes 
these  should  be,  is  clear  from  the  foregoing.  Some  of  these 
persons  belong  in  institutions  for  epileptics,  some  in  insane 
asylums.  Most  of  them  belong  in  what  would  be  an  inter- 
mediate institution  between  the  workhouse  and  the  insane 
asylum.  In  any  case,  their  treatment  requires  the  services 
of  physicians. 

In  these  institutions  belong,  also,  most  of  the  vagrants, 
among  which  the  physically  and  mentally  normal  are  in  the 
minority.  Of  what  use  are  the  present  short  sentences,  which 
sometimes  mount  up  to  a  hundred  and  more,  or  even  the 
temporary  sojourns  in  a  workhouse?  Of  none  whatever. 
Experience  teaches  us  that  many  inmates  of  workhouses  are 
industrious  and  useful  laborers,  who  by  their  own  work  cover 
the  cost  of  their  maintenance  to  the  State  either  partially  or 
entirely.     Why  should  not  such  people  be  permanently  de- 

1  "Traite  de  medecine  legale  et  de  jurisprudence  medicale,"  Paris,  1874. 
A.  Delahaye,  p.  723. 


§  29]  CONCLUSION  317 

tained  in  suitable  institutions,  instead  of  being  turned  out 
into  the  road  at  the  end  of  a  short  time?  Such  a  measure  is 
not  as  cruel  as  it  seems.  The  intervals  between  imprisonment 
and  detention  in  a  workhouse  are  generally  very  short,  and 
many  persons  do  not  feel  at  all  unhappy  under  the  systematic 
regime  of  the  workhouse. 

In  this  way,  too,  the  number  of  cases  of  vagrancy,  etc., 
which  at  present  require  so  much  of  the  judge's  attention, 
would  be  greatly  diminished,  and  thus  more  time  would  be 
gained  for  the  thorough  investigation  of  graver  crimes. 

There  still  remain  a  few  words  to  be  said  in  regard  to  drunk- 
ards. Some  years  ago  a  drunkard  was  committed  to  an  insane 
asylmn  on  account  of  a  fit  of  delirium  tremens  which  passed 
in  a  few  days.  The  man  was  physically  sound,  but  a  dissolute 
drunkard,  who,  as  the  records  showed,  ill-treated  his  wife  and 
children  disgracefully,  fought  with  his  neighbors  and  passers- 
by,  attacked  the  police,  etc.  But  he  was  not  insane  in  the 
legal  sense  and  had  to  be  released.  This  was  the  decision  of 
the  Ministry,  whose  special  judgment  was  obtained. 

This  case  is  typical  of  the  legal  conditions  that  rule  at  the 
present  day,  and  shows  what  should  and  must  be.  In  such 
cases  the  court  must  intervene  and  commit  the  man  to  a  hos- 
pital for  inebriates  or,  if  he  proves  to  be  incurable,  to  a  per- 
manent institution  for  alcoholics.  To  all  individuals,  from 
the  lunatic  to  the  normal  delinquent,  the  same  formula  ap- 
plies: adaptation  of  social  repression  to  the  individuality 
of  the  transgressor. 

§  29.  Conclusion 

The  adaptation  of  social  repression  to  the  individuality 
of  the  delinquent,  leads  unavoidably  to  the  indeterminate 
sentence.  The  need  of  a  more  efficacious  defense  against  the 
dangerous  habitual  criminal,  must,  as  was  mentioned  on  page 


318  THE  STRUGGLE  AGAINST  CRIME  [§29 

304,  make  imprisonment  appear  to  be  the  best  of  the  possible 
ways.  Again  and  again  voices  have  been  raised  advocating 
the  indeterminate  sentence  as  the  remedy.  In  1880,  Krae- 
peHn  ^  once  more  gave  due  significance  to  the  problem, 
when,  in  logically  carrying  out  the  theory  of  correction  and 
entirely  rejecting  the  theory  of  retribution,  which  had  be- 
come untenable,  he  demanded  the  abolition  of  the  fixed  term 
of  punishment.  Except  for  a  few,  generally  unfavorable, 
remarks,  his  demand  was  at  first  deliberately  passed  over 
in  silence.  But  not  for  long.  The  idea  was  too  sound,  the 
soil  too  fertile,  for  a  reform,  the  weight  of  opinion  that  de- 
manded reform  too  heavy,  the  value  of  the  scientific  work  of 
the  new  school  too  great. 

In  view  of  the  difficulty  with  which  practical  ideas  pene- 
trate into  chiefly  theoretical  sciences,  and  of  the  century-long 
stability  of  the  notions  in  regard  to  the  nature  of  crime  and 
the  manner  of  combating  it,  the  progress  made  appears, 
indeed,  astonishingly  great.  This  is,  of  course,  not  equally 
true  of  all  countries.  Besides  the  corrective  after-detention 
of  beggars  and  tramps,  and  the  conditional  release,  we  in 
Germany  have  achieved  only  the  conditional  pardon,  and  that 
only  in  a  limited  application.  But  just  in  this  illustration 
the  triumphant  power  of  the  new  ideas  can  best  be  demon- 
strated. In  1890  the  "Justizministerialblatt  fiir  die  preus- 
sische  Gesetzgebung  und  Rechtspflege "  ^  published  "The 
Reports  of  the  Presidents  of  the  Supreme  Courts  and  the 
Reports  of  the  Public  Prosecutors  on  the  so-called  conditional 
sentence."  Of  the  thirteen  reports,  twelve  were  against  its 
introduction,  and  even  in  the  case  of  its  application  to  juvenile 
criminals,  only  a  minority  was  in  favor  of  it.  A  few  years 
later  thousands  enjoyed  the  blessing  of  conditional  pardon, 

^  Kraepelin,  "Die  Abschaffung  des  Strafmasses,"  1880. 
2  1890,  LII,  No.  a. 


§  29]  CONCLUSION  319 

which  we  are  justified  in  regarding  as  a  preliminary  stage  of 
the  conditional  sentence. 

And  in  1904  a  public  prosecutor,  Greffrath,  was  able,  with 
the  general  consent  of  expert  opinion,  to  demand  protective 
detention  for  an  indefinite  time,  and  the  meeting  of  the  prison 
society  of  Saxony  and  Anhalt,  acting  on  the  proposal  of  the 
pubhc  prosecutors  von  Prittwitz  and  Gaffron,  declared  the  in- 
troduction of  protective  detention  to  be  absolutely  necessary. 

What  with  us  is  still  a  cherished  wish,  in  other  countries 
has  been  more  or  less  realized  or  will  be  so.  The  regulations 
of  the  draft  of  the  Swiss  criminal  code  signify  a  break  with  the 
past.  They  provide  that,  instead  of  receiving  a  prison  sen- 
tence, a  dangerous  recidivist  may  be  committed  to  a  special 
institution,  his  detention  there  to  be  for  at  least  ten,  and  not 
more  than  twenty,  years,  at  the  discretion  of  the  court,  "if 
the  court  is  con\anced  that  the  delinquent,  after  serving  a 
prison  sentence,  would  relapse  into  crime,  and  if  it  considers 
his  detention  necessary"  (Arts.  29  and  30).  In  the  case  of 
partially  responsible  persons,  the  judge  has  the  right  to  di- 
minish the  penalty,  according  to  his  own  judgment,  but  he 
has  also  the  right  to  commit  the  person  to  an  institution 
(Arts.  16  and  17).  Most  important  of  all,  however,  is  Art.  35. 
The  court  can  commit  to  a  hospital  for  inebriates  the  habitual 
drunkard  who  has  been  acquitted  on  account  of  irresponsi- 
bility, as  well  as  the  condemned  habitual  drunkard.  Here  we 
see  clearly  the  demand  for  practical  treatment,  even  where  a 
penalty  is  provided  as  well. 

On  July  3,  1904,  a  bill  passed  its  second  reading  in  the  Eng- 
lish House  of  Commons,  providing  lengthy  detention  and 
special  treatment  for  any  criminal  who  can  be  sentenced  to 
penal  servitude  and  who  has  already  been  three  times  con- 
victed of  indictable  offenses. 

Finally,    in    Norway  protective    detention  is  already  an 


320  THE  STRUGGLE  AGAINST  CRIIVIE  [§29 

accomplished  fact.  Section  66  of  the  general  Penal  Code  of 
May  22,  1902,  provides  that,  when  a  criminal  is  particularly 
dangerous,  he  may  be  detained  in  prison  for  a  period  not 
exceeding  fifteen  years.^ 

Even  in  Norway,  however,  the  principle  has  not  been  car- 
ried to  its  final  consequence,  the  aboUtion  of  the  fixed  term, 
even  in  the  case  of  the  most  dangerous  criminals.  But  the 
break  with  the  methods  of  treatment  that  have  obtained 
hitherto  is  unmistakable.  We  may  confidently  await  the 
further  development  of  criminal  law.  "In  science,  as  in  life, 
the  conservative  man  advocates  ideas  to-day  which  a  few 
years  ago  were  advocated  only  by  the  boldest  of  the  radicals,"  ^ 
If  our  views  are  right,  their  triumph  is  assured.  One  point 
scarcely  needs  further  proof:  the  adaptation  of  the  social 
reaction  to  the  individuality  of  the  law-breaker  does  not  lead 
to  a  weakening,  but  rather  to  a  strengthening,  of  State  au- 
thority. What  could  increase  our  consciousness  of  the  power 
of  the  State's  organization  more  than  the  feeling  of  being  pro- 
tected from  the  attacks  of  those  who  will  not  or  cannot  sub- 
mit to  the  legal  order?  Our  respect  for  the  State's  authority 
must  grow  when  we  see  it  pursuing  such  a  purposeful  policy 

1  Paragraph  65:  "If  any  person  is  guilty  of  several  accomplished  or  at- 
tempted crimes  for  which  penalties  are  provided  in  sections  148, 149, 152  clause 
II,  153,  I,  II,  III,  154,  159,  160,  161  (offenses  against  public  safety),  sections 
174,  178  (counterfeiting  money),  sections  191,  192,  193,  195-198,  200-204 
(sexual  crimes),  section  217  (seduction  of  minors),  sections  224,  227  (kidnap- 
ping), sections  230,  231,  233,  245  II  (crimes  against  the  person),  section  261 
(grand  larceny),  sections  266-268  (extortion  and  robbery),  section  292  (of- 
fenses against  property),  the  court  can  decide  to  lay  before  the  jury  the 
question  whether,  in  view  of  the  nature  of  the  crimes,  their  motives,  or  the 
attitude  of  mind  that  they  indicate  in  the  criminal,  he  is  to  be  regarded  as 
particularly  dangerous  to  society  or  to  the  life,  health,  or  prosperity  of  in- 
dividuals. If  this  question  be  affirmed,  judgment  can  be  given  that  the 
convict  is  to  be  detained  in  prison  as  long  as  it  is  considered  necessary,  the 
term,  however,  not  to  exceed  three  times  the  fixed  penalty,  and  in  no  case 
to  exceed  fifteen  years  more  than  the  fixed  term." 

2  Ferri,  he.  cit.  p.  489. 


§  29]  CONCLUSION  321 

towards  the  criminal  that  it  does  not  even  stop  at  the  most 
difficult  step,  his  permanent  removal  from  society,  when 
necessary. 

The  indeterminate  sentence,  and  particularly  the  imprison- 
ment for  life,  of  a  criminal  whose  offenses  are  comparatively 
harmless,  have  been  decried  as  senseless  cruelty,  and  the 
mercy  shown  to  the  occasional  criminal  as  pure  sentimentality 
—  in  both  cases  entirely  without  justification.  Why  should 
a  person  be  made  to  feel  the  weight  of  a  penalty  when  a  warn- 
ing suffices  for  him,  why  punish  a  man  who  is  ready  to  make 
good  the  injury  he  has  done  to  an  individual  or  society,  why 
imprison  a  person  who  is  deeply  and  truly  remorseful.'* 

And,  on  the  other  hand,  is  not  the  peaceful  citizen  entitled 
to  protection  and  security? 

The  means  hitherto  employed  in  combating  criminality 
have  proved  to  be  ineffective.  Hence,  no  one  can  be  blind 
to  the  necessity  for  far-reaching  reforms  except  those  who 
cling  narrow-mindedly  to  the  antiquated  and  admittedly  in- 
adequate methods  that  have  proved  unsuccessful.  The 
facts  shown  by  impartial  criminal  statistics  cannot  be  denied. 
The  system  of  criminal  law  that  has  been  forced  and  squeezed 
into  sections  must  also  bow  to  the  advance  of  science.  We 
cannot  hope  that  the  new  life  which  we  hope  to  breathe 
into  the  rigid  and  benumbed  forms  will  immediately  lead  to  a 
sudden  and  complete  reformation,  but  we  may  and  do  expect 
that  its  gradual  growth  will  produce  better  fruit. 

Society  is  responsible  to  the  criminal,  because  some  of  the 
causes  of  crime  are  inherent  in  it;  it  cannot  escape  the  duty 
of  tracing  out  these  causes,  and  eradicating  them  where  that 
is  possible.  The  criminal  however  is  responsible  to  society, 
because  he  lives  in  it  and  because  his  criminal  activity  in- 
jures its  primary  conditions  of  life.  Hence  he  must  submit 
to  society's  opposing  him  with  all  the  means  in  its  power. 


322  THE  STRUGGLE  AGAINST  CRIME  [§29 

We  have  reached  the  point  where  the  apparently  firm 
foundations  of  criminal  law  appear  to  quake,  where  a  new 
structure  is  to  be  erected,  the  stones  of  which  have  not  yet 
been  tried,  a  part  of  the  material  of  which  has  still  to  be  found. 
But  this  cannot  now  or  ever  be  done  in  the  study,  nor  by  means 
of  theoretical  abstractions.  Only  dispassionate  consideration 
that  views  impartially  the  phenomena  which  we  call  crimes, 
which  observes  first  and  then  concludes, — in  a  word,  only  the 
natural  scientific  method,  —  can  smooth  the  way  that  leads 
to  a  knowledge  of  crime  and  of  criminals.  Not  until  then  will 
a  sure  foundation  be  laid  for  the  proud  structure  of  legal 
security. 


INDEX 


INDEX 


[References  are  to  Pages] 


Abolition  of  prostitutes,  98,  99. 

Abortion,  criminal,  9,  31,  63,  158. 

Acquittals,  8. 

Adulteration  of  food,  55. 

Age  and  criminality,  139-157. 

Agricultural  laborers,  118,  147. 

Albanel,  133. 

Alcohol,  44,  45,  46,  69,  119,  228-230. 

Anomalies,  125,  171-178,  198-201. 

Apoplexy,  126. 

Army  and  navy,  criminality  in,  84. 

Arson,  64,  146. 

Artena,  127. 

Aschrott,  284. 

Assault  and  battery,  27,  32,  43,  44, 

45,  56,  63,  65,  77,  78,  83-88,  105, 

119,  144,  149,  159,  225. 
Atavism,  198,  199. 
Austria,  32,  33,  34,  39,  57,  100. 

B 

Baden,  75. 

Baer,  72,  73,  74,  175,  176,  178,  179, 
193,  200. 

Bankruptcy,  53,  55,  117,  118. 

Baumgarten,  93. 

Bavaria,  34. 

Bebel,  92,  94,  118. 

Beer,  consumption  of,  119. 

Beggars,  162,  247. 

Behrend,  94. 

Belgium.  33,  34,  266,  289. 

Benedikt,  174. 

Benneoke,  268. 

Berg,  Hermann,  113,  116. 

Berlin,  34,  128,  191. 

Beurle,  39.  50. 

Birkmeyer,  254,  255,  256. 

Births,  distribution,  by  months,  20, 
26. 
illegitimate,  according  to  re- 
ligion, r>(o,  57;  and  home  train- 
ing, 130,  131;  frequency,  in 
countries  of  Europe,  33,  34. 


Bischoff,  173. 

Blaschko,  94. 

Bleuler,  126,  201. 

Bodio,  31. 

Bonhoffer,  70,  73,  95,  191. 

Borderland  states,  197. 

Born  criminal,    6,    169,   170,   198- 

201,  206. 
Bosnia  and  Herzegovina,  34. 
Boston,  289. 
Bourneville,  70. 
Brain  and  skull,  173-177. 
Breach  of  the  peace,  27,  149,  166. 
Brothels,  96-100. 
Building  trades,  147. 

c 

Cadets,  96,  97. 

Capital  punishment,  265-267. 

Castration,  233. 

Catholics,  52,  54,  58-61. 

Causes  of  crime,  3,  5,  11,  12. 

individual,  15,  123-213. 

social,  15-122. 
Character,  244,  245. 
Characteristics    of    the     criminal, 
mental,  178-186. 

physical,  168-178. 
Chastity,  crimes   against,    65,  147, 

150,  153. 
Children,  physically  and  mentally 
inferior,  232. 

of  poor  parents,  233. 

see  Juveniles. 
Cholera,  227. 
Christians,  52-61. 
Church,  239. 

City  and  country,  crime  in,  61-69. 
Civil  rights,  loss  of,  270. 
Classification  of  criminals,  198-213. 
Cocaine,  90. 

Coercion  and  threats,  27. 
Coffee  and  crime,  SS. 
Conceptions,    distribution    of,    by 
month,  19,  20,  21,  26. 


326 


INDEX 


Concerts,  230. 

Conditional  pardon,  290,  314,  318. 
Conditional  release,  293-297. 
Conditional  sentence,  287-292. 
Confession,  59,  60. 
Confinement  symptoms,  193. 
Continued  acts,  224. 
Convictions,  217,  218,  220,  221,  224. 
Convict  labor,  267,  268,  274. 
Convicts,  9. 

released,  236-238. 
Convict's  insanity,  193. 
Copenhagen,  75. 
Corporal  punishment,  268-270. 
Corre,  5. 

Corrective-education  law,  151. 
Corsica,  37,  38. 
Cost  of  living,  106-119. 
Country  and  city,  crime  in,  61-69. 
Court  officers,  crime  among,  67. 
Crime,    against   chastity,   65,    147, 
150,   153;  natural  laws,   17; 
person,  7,  10,  11;  property, 
7,  10,  11,  17,  28,  63,  81,  147, 
224. 
among  students,  54,  60,  80-82. 
as  affected  by  alcohol,  69-88; 
day    of    the    week,    76-80; 
economic  and  social   condi- 
tions,   101-122;    ether,    88; 
gambling    and    superstition, 
101,   102;  national  customs, 
69-88;    occupation,     64-69; 
opirnn,    morphine,    and    co- 
caine, 89,  90;  race  and  re- 
ligion, 30-61;  season,  16-30; 
summer  festivities,   28;   tea 
and  coffee,  88;  tobacco,  88. 
causes  of,  3,  5,  11,  12;  individ- 
ual, 15,  123-213;  social,  15- 
122. 
circumstances  of,  3-6. 
differences  in  prosecution  of,  31 . 
geographical    distribution    of, 

30-51. 
in  city  and  country,  61-69. 
increase  in,  7. 
occupational,  212. 
prevention  of,  227-241. 
psychology  of,  3,  5,  10-12. 
punishable     and     non-punish- 
able, 1,  2. 
sexual,  11,  16-21,  24-26. 
struggle  against,  214-322. 
Crimes,  difficulties  in  definitions  of, 

31. 
Criminal,  bom,  6,   169,   170,   198- 
201,  206. 


Criminal  —  Cont. 

chance,  207. 

characteristics,    mental,     178- 
186;  physical,  168-178. 

deliberate,  207,  209. 

habitual,   207,   211,   212,  219, 
222. 

mental  diseases,  186-198. 

momentary,  206,  209. 

of  opportunity,  207,  208. 

of  passion,  207,  208. 

professional,  207,  211,  212,  219. 

psychology,  180. 

recidivist,  207,  210,  215-222. 
Criminal  abortion,  9,  31. 

insane,  189. 

irritability,  9. 

law,  3-5. 

physiognomy   of   the   present, 
214-226. 

psychology,  3,  5,  10-12. 

responsibility,  139,  140. 

statistics,  see  Statistics. 
Criminality,  and  age,  139-157; 
domestic  status,  162-168; 
education,  131-138;  environ- 
ment, 133-135;  heredity, 
124-131;  profession,  66-69; 
sex,  153-162. 

in  Corsica,  37,  38;  Sardinia,  38. 
Criminals,  association  of,  with  be- 
ginners in  crime,  282. 

classification,  198-213. 

injury  done  by,  223-226. 
Cron,  54. 
Cruelty,  146. 
Customs  and  smuggling,  239. 

D 

Defense,  245-248. 

De  Fleury,  266. 

Degeneration,   124,   128,   129    171, 

172,  177,  198,  200. 
Demme,  69. 
Denmark,  34,  269. 
Deportation,  267. 
Deprivation  of  liberty,  276. 
Deterrence,  251,  260-267. 
Diem,  126. 
Disease,  and  heredity,  124-131. 

mental,  186-198. 
Distilleries,  230. 
Di  Verce,  Fornasari,  107. 
Divorced,  criminality  of,  167,  168. 
Dix,  139. 
Domestic  status  and  crime,    162- 

168. 


INDEX 


327 


Drowning,  23. 

Drunkenness,  69-88,  124,  129,  228- 

230,  317. 
Du  Chatelet,  Parent,  91. 
Dueling,  54. 
Durkheim,  22. 
Du  Saulle,  Legrand,  316. 
Dwellings,  hygienic,  231. 

E 

Ecclesiastics,  crime  among,  67. 

Economic  and  social  conditions  and 
crime,  101-122. 

Education,  compulsory,  234,  247. 
influence  on  criminality,  131- 

138. 
special,  for  juveniles,  313,  314. 
State,  129,  234. 

Educational  institutions,  234-236. 

Ellis,  Havelock,  24,  185. 

Embezzlement,  116,  117,  150,  159, 
160,  225. 

Engel,  136. 

England,  33,  142,  288,  289,  319. 

Environment,  133-135,  201. 

Epilepsy  and  epileptics,   128,  129, 
146,  188,  197,  199. 

Ether  and  crime,  88. 

Evangelical    Christians,  see    Prot- 
estants. 

Evil  eye,  101. 

Executions,  capital,  266. 

Expiation,  246,  251-259. 

Extenuating  circumstances,  315. 


False  accusations,  160. 

Family  disposition,  125. 

Feeble-minded,  the,  18&-198. 

Ferrero,  92. 

Ferri,  16,  206,  228,  236,  246,  247, 
253,  266,  286. 

Ferriani,  133,  135. 

Fertig,  Mr..  77. 

Feuerbach,  Anselm,  252. 

Fines,  274. 

Finger,  Mr.,  256. 

Fixed  terms  of  punishment,  aboli- 
tion of,  297-309. 

Flogging,  269. 

Foldes,  44. 

Folk-customs,  51,  69. 

Forestry  work,  147,  274,  275. 

Forgery,  55. 

France,  62,  108,  109,  119,  136. 

Frank,  305. 


Fraud,  28,  43,  48,  55,  63,  67,  116, 

117,  150,  159,  160. 
Free  determination  of  will,  86. 
Free  will,  241-250. 

G 

Gall,  168. 

Gambling,  100. 

Garofalo,  32,  123. 

Gaupp,  36,  169. 

Geill,  75. 

Gentlemen  swindlers,  212. 

Geographical  distribution  of  crime, 
30-51. 

Germany,  17-20,  29,  32,  33,  34,  40- 
51,  62,  103,  110,  111,  119,  130, 
137,  141,  220,  224,  266,  290. 

Gettatura,  101. 

Geyer,  2. 

Gift  for  work,  237. 

Gross,  Hans,  25,  51,  101,  275. 

Guardianship,  loss  of  right  of,  270. 

Guillaume,  130,  131. 

Guilt,  subjective  and  objective,  253. 

H 

Hamburg,  227. 

Handmann,  173. 

Handwriting,  168. 

Hanover,  31. 

Hartmann,  126. 

Heim,  80. 

Heimberger,  264,  265. 

Heredity,  125-131. 

Herz,  39,  50,  117. 

Hippel,  274. 

Hirsch,  92. 

Hirschberg,  110. 

Hoche,  249. 

Holland,  33. 

Home,  influence  of,  129,  139,  239. 

Homicide,  31,  32. 

House  arrest,  275. 

Hysteria,  128,  197. 


Illiterates,  137. 
Imprisonment,  defects,  285. 

ineffectual,  258,  261,  274. 

penitentiary,  276 

short,,  285. 

simple,  276. 

with  supervision,  270. 
Incorrigibles,    202,    203,   212,    273, 
302,  304,  305. 


328 


INDEX 


Indecent  assaults,  225. 
Indemnification,  286,  287. 
Indeterminate  sentence,   302,   303, 

317,  318,  321. 
Individual  causes  of  crime,  15,  123- 

213. 
Industrial  conditions,  displacement 

of,  147. 
Inebriates,  descendants  of,   69-72. 

see  Drunkenness. 
Infanticide,  26,  27,  63. 
Insanity,  124,  126,  129,  248. 
among  criminals,  186-198. 
moral,  203. 
simulated,  195,  196. 
Insult,  27,  55,  144,  149,  159,  166. 
Intellectual  abilities  of  the  criminal, 

178-180. 
Intelligence  test,  132. 
International    Union    of    Criminal 

Law,  206,  209,  212,  308,  313,  314. 
Intoxication,  see  Drunkenness 
Ireland,  142. 
Irish  penal  system,  284. 
Irresponsibihty,  see  Responsibility. 
Italy,  32,  34,  61,  100-102. 


Jews,  52-57. 
Joly,  37. 

Judges,  306;  307. 

Judgment,  criminal's,  of  his  act,  182. 
Juke  family,  127. 

JuvenUes,   140,  216-219,  225,  276, 
310-314. 


Kim,  179,  200. 

Klein,  302. 

Kluge,  235. 

Knecht,  176,  193. 

Kohlrausch,  235. 

KoUer,  126. 

KraepeUn,  84,  171,  257,  318. 

Krauss,  205. 

Krohne,    189,    194,   204,   238,   250, 

255,  270,  282,  307,  308,  309. 
Kuppelei,  97. 

Kurella,  39,  107,  127,  170,  175. 
Kiirz,  78. 


Labor,  see  Work. 
Lacassagne,  184. 


Lafargue,  110,  117,  118,  119. 

Lang,  Otto,  76. 

Larceny,  see  Theft. 

Lavater,  168. 

Law,  and  popular  judgment,  252. 

corrective-education,  151. 

criminal,  3-5. 

Lord's  Day,  52,  80. 
Lawyers,  crime  among,  67. 
Legislation,  incomparabUity  of,  31. 
Leg03i;,  31. 
Legrain,  70. 
Leppmann,  Fritz,  191. 
Lese-majeste,  104. 
Levasseur,  136. 
Lewin,  9,  10,  158. 
Licenses,  bar,  230. 
Lombroso.  6,  32,  88,  92,  138,  161, 
168-170,  172,  183,  198,  199,  205, 
206. 
Longard,  195. 
Lord's  Day  law,  52,  80. 
Lotteries,  100. 
Lowenstimm,  101. 


M 


Malicious  mischief,  10,  11,  28,  144 

149,  159. 
Mark  of  degeneration,  172,  177. 
Marriage  and  crime,  162-168. 
Masturbation,  283. 
Mattoids,  206. 
May,  Max,  109. 

Mental,  characteristics  of  the  crimi- 
nal, 178-186. 
diseases  among  criminals,  186- 
198. 
Metal  industries,  147. 
Meyer,  Albert,  110. 
Mingazzini,  174. 
Mining,  148. 
Minor  offenses,  4,  9. 
Minors,  see  Juveniles. 
Mitigation  of  misery,  232. 
Mohr,  249. 
Monaco,  34. 

MonkenmoUer,  128,  129,  132. 
Montefortinos,  the,  127. 
Moral  insanity,  203. 
Morphine,  89. 
Morselli,  22,  34. 
Motives,  psychological,  of  crime,  3 

5,  11,  12. 
Miiller,  Heinrich,  106,  107,  113. 
Municipal  work,  274,  275. 
Mysticism,  146. 


INDEX 


329 


N 

Naecke,  171,  177,  190. 
National  customs  and  crime,  69. 
Newspapers,  239-241. 
Niceforo,  38. 
Norway,  319,  320. 


O 

Obscene  acts,  19. 

Occupation  and  crime,  64-69,  147, 

148. 
Offenbacher,  Martin,  60. 
Olrik,  206,  208. 
Opiimi,  89. 


Palatinate,  the,  45. 

Panderers,  96,  97. 

Parentage  and  training,  124—135. 

Parental  authority,  loss  of  right  to 
exercise,  270. 

Parole,  293-297. 

Partially  responsible  persons,  314- 
317. 

Penal  substitutes,  228. 

Penalties,  existing,  ineffectual,  222. 

Penitentiary  imprisonment,  276. 

Pennsylvanian  system,  282. 

Perjury,  65. 

Person,  crimes  against,  7,  10,  11. 

Physical  characteristics  of  the  crim- 
inal, 168-178. 

Physicians,  crime  among,  67. 

Plotzensee,  74. 

Police,  238. 

Police  surveillance,  271,  272. 

Poverty,  163. 

Press,  the,  239-241. 

Prevention  of  crime,  227-241,  251, 
260-267. 

Prices  and  crime,  106-119. 

Prinzing,  163-167. 

Prison  delirium,  192. 

Prison  sentence,  276. 

Probation,  288-292. 

Procreation,  prevention  of,  232,  233. 

Procurers,  104,  154. 

Procuring  for  prostitution,  158. 

Profession  and   criminality,    66-69, 
118. 

Property,  crimes  against,  7,  10,  11, 
17,  28,  63,  81,  147,  224. 

Prostitution,   and   prostitutes,   90- 
99,  161,  162,  247. 
inducing  to,  11. 


Protective  detention,  319. 
Protectors,  97. 
Protestants,  52,  54,  58-61. 
Provident  societies,  271. 
Prussia,  31,  .56,  130,  131. 
Psychogenesis  of  crime,  5. 
Psychology,  of  crime,  3,  5,  10-12. 

of  masses,  121,  122. 

of  the  criminal,  180. 
PubUc-house,    144,    148,    164,    165, 

167. 
Punishable      and      non-punishable 

crimes,  1,  2. 
Punishment,     abolition     of     fixed 
terms,  297-309. 

capital,  265-267. 

corporal,  268-270. 

essential  condition  of,  1. 

means,  265-285. 

origin,  246,  247. 

purpose,  250-265. 

threatened  but  not   executed, 
238. 


Quetelet,  156. 


Q 


R 


Race,  30-51. 
Rape,  11,  118. 
Raux,  134. 
Reaction,  false,  85, 
premature,  85. 
to  stimuh,  244-246. 
Reading  rooms,  230. 
Recall,  297,  303,  304. 
Receiving  stolen  goods,  116,  160. 
Recidivism    and     recidivists,    207, 

210,  214-222,  263,  268,  292,  293, 

295,  298-302. 
Relapse,  see  Recidivism. 
Released  convicts,  care  of,  236-238. 
Religion,  influence  on  crime,  35,  36, 

51^1. 
Reprimand,  276. 
Resistance  to  officers,  27,  43,  46,  65, 

149. 
Responsibility,    criminal,    139-142, 

145,  180,  191,  197,  241-250. 
Restaurants,  2.30. 
Retribution,  246,  251-259. 
Rettich,  83. 

Revenge,  246,  251,  252. 
Rodat,  89. 
Rudin,  192,  193. 


330 


INDEX 


Russia,  33,  34,  57,  101. 
Rykere,  67. 

S 

Sacker,  210,  211. 

Saloons,  230. 

Sander,  186. 

Sardinia,  38. 

Saxony,  53. 

Scheven,  190. 

Schmidt,  251,  252,  256. 

School,  139,  239,  241. 

Schopenhauer,  242. 

Schroter,  77. 

Schuster,  Ernst,  142. 

Schwandner,  295. 

Season  and  crime,  15-30. 

Semoff,  174,  175,  199. 

Servants,  67,  146. 

Seuffert,  11,  48,  49,  105,  151,  308. 

Sex,  153-162. 

Sexual  crimes,  11,  16-21,  24-26, 
145,  146. 

Sexual  desires,  ceasing  of,  1.54. 

Sexual  excitability,  fluctuations  in, 
16-21,  24-26. 

Sichart,  126,  129,  295. 

Sighele,  121,  122,  127. 

Simulation  of  insanity,  195,  196. 

Skull  and  brain,  173-177. 

Slang,  thieves',  183,  185. 

Smuggling,  239. 

Snell,  73. 

Social  and  economic  conditions  and 
crime,  101-122. 

Social  causes  of  crime,  15-122. 

Softening  of  the  brain,  197. 

Solitary  confinement,  192,  193, 
282   283 

Somm'er,  179,  200,  205. 

Spain,  34. 

Spirits,  consumption  of,  119. 

Spurzheim,  168. 

Statistics,  criminal,  3,  4,  7-13,  17, 
30-36,  39-44,  51,  52,  55,  .58,  59, 
61,  64,  68,  78,  80,  82,  95,  106, 
113,  116,  132,  137,  143,  148,  151, 
157,  163,  186,  202,  211,  212,  219, 
220,  223,  260,  262,  266,  281,  300. 

Stieda,  172. 

Stigmata,  126,  171,  177,  199,  200, 
205. 

Stint,  278,  279. 

Strikes,  120-122. 

Strohmberg,  92,  93. 

Students,  54,  60,  80-82. 

Stumme,  185. 


Suicide,  21-24,  34,  35,  36. 
Sundav  rest,  80. 
Superstition,  100-102. 
Suspended  sentence,  287-292,  314. 
Switzerland,  33. 
Szarlardi,  34. 


Tamowskaja,  92. 
Tatooing,  183-186. 
Tea  and  crime,  88. 
Teachers,  crime  among,  67. 
Temperature,  and  other  crimes,  27. 

and  suicide,  21-24. 
Tenement  houses,  167. 
Theft,  28,  30,  32,  43,  46-48,  57,  67, 

105,  106,  110,  113-115,  143   144, 

149-151,  1.59,  219. 
Thieves'  slang,  183,  185. 
Tippel,  234. 
Tobacco  and  crime,  88. 
Training  and  parentage,  124-135. 
Tramps,  162,  211,  247 
Traunstein,  49. 

U 

Usury,  52,  53,  65,  67, 


Vendetta,  37. 

Venereal  diseases,  91. 

Villerme,  20. 

Von  Holtzendorff,  251. 

Von  Jagemann,  275. 

Von  Krohne,  4. 

Von  Landmann,  242. 

Von  Liszt,  3,  6,  10,  149,  151,  208, 

312. 
Von  Mavr,  15,  34,  106,  113. 
Von  Oettingen,  61,  162. 
Von  Rohden,  48,  114. 
Von  Scheel,  58. 
Von  Weinrich,  254. 

W 

Wach,  214,  226,  256. 

Welcker,  173. 

Widowed,  criminality  of,  167,  168. 

Will,  241-250. 

Witches,  persecution  of,  102. 

Wlarsak,  44. 

Work,  by  the  day,  279. 

forestry    and    municipal,    274, 
275. 

for  released  prisoners,  237. 


INDEX 


331 


Work  —  C<mt. 

penal,  275. 

prison  and  penitentiary,  276- 
280. 
Work  premium,  237. 
Workhouse,  272,  273. 
Workmen,  68,  120. 
Wulffen,  309. 


Yvemes,  63. 


Zucker,  2. 
Zurich,  76. 


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